Filed 11/22/23 P. v. Ramirez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.

GLEN ALLEN RAMIREZ,

Defendant and Appellant. H050583 ( Santa Clara County Super. Ct. No. CC120254 )

I. INTRODUCTION
In 2002, defendant Glen Allen Ramirez was convicted by jury of spousal rape by
force (former Pen. Code, § 262, subd. (a)(1)), 1 forcible oral copulation (former § 288a,
subd. (c)(2)), and infliction of corporal injury on a spouse (§ 273.5, subd. (a)). Various
allegations were also found true, including that he suffered a prior serious felony
conviction ( § 667, subd. (a)). Defenda nt was se ntenced to an indeterminate term of

50 years to life consecutive to a determinate term of 30 years, which included a five

- year enhancement for the prior serious felony conviction.

In 2020 , the Secretary of the Department of Corrections and Rehabi litation
(CDCR) recommended that defendant ’ s sentence be recalled and that he be resentenced

pursuant to then section 1170 , subdivision (d)

. The recommendation by the Secretary of

1 All further statutory references are to the Penal Code unless otherwise indicated.2

the CDCR was based on a change in the law that gives a trial court the disc retion to strike
a prior serious felony enhancement (see §§ 667, subd. (a)(1), 1385). A fter briefing by the
parties and a hearing, the trial court declined to recall and resentence defendant

. On appeal, defendant contends that the trial court abused its discretion in declining
to recall and resentence him because the court failed to make the requisite finding that he

pose s an unreasonable risk of committing a super strike offense. He also argues that
there is no substantial evidence to support a conclusi on that he poses an unreasonable risk
of committing a super strike offense.
For reasons that we will explain, we will affirm t he order denying recall and

resentenc ing of defendant

II. BACKGROUND

A. The Offenses

The victim was defendant ’s estranged wife. The couple had been together for
approximately five years and had been married for 14 months. During the course of their
relationship, defendant was often physically abusive of the victim. The couple ha d
frequently broken up over defend ant’s abuse and later reunited. At the time of the

offenses , the couple was separated

. In August 2001, the victim arrived home to find defendant in her apartment. She

told him to leave

. Defendant g rabbed the victim’s wrists and pushed her into her

bedr oom and onto the bed, facing up. When the victim tried to free herself, defendant
punched her hard underneath her right eye. The victim felt her face instantly swell up.

Later, defendant attempted to stab the victim in the knee with a knife

. He then grabbed

her wrists

, took her to the kitchen where he obtained a different knife that was seven or eight inches with a pointed tip, and took her back to the bedroom. D efendant order ed the

victim to orally copulate him. She refused. When defendant attempted to force her to orally copulate him, she put her hand in front of her mouth

. At that point, defendant put

the knife to the victim’s face and repeated his demand that she orally copulate him

. T he3

victim complied. Defendant subsequently threatened to stab the victim if she did not

remove her clothes. After the victim removed her clothes, defendant r aped her and then

stabbed her in the t hi gh

. Defendant subsequently lifted the knife above his head and her

face and told her that she was going to die. The victim cried and repeatedly told him not

to do it. The victim had children from a previous marriage. She referred to her children

, including saying their names. Defendant’s face changed , and he brought his arm down.

B. Verd icts and Sentencing
In 2002, a jury convicted defendant of spousal rape by force ( fo rmer § 262,

subd. (a)(1)), forcible oral copulation (former § 288a, subd. (c)(2))

, and infliction of
corporal injury on a spouse (§ 273.5, subd. (a)). Various allegations were found true,
including that defendant personally inflicted great bodily injury a nd /o r personally used a
dangerous or deadly we apon as to certain count s, that he suffered a prior serious felony

conviction ( § 667, subd

. (a) )

, and that he suffered a prior strike convictio n. According to the probation report, defendant had at least nine prior felony

convictions and at least 34 prior misdemeanor convictions. His prior felony convictions
included second degree burglary, escape by a misdemeanant, vehicle theft, and
possession of a controlled substance. Defendant also had a prior strike conviction for a
1983 robbery in which he demanded money from a donut shop employee while
pretending to have a weapon under his shirt. Defendant’s misdemeanor convictions

included two convictions for inflicting corporal injury on a spouse, four convictions for
battery on a spouse, and convictions for violation of a domestic violence order, false
imprisonment, vehicle theft, vandalism, and being under the influence of a controlled

substance. Defen dant was on probation at the time of the instant offenses.
Defendant was original ly sentenced for the current offenses in 2002 to an

indeterminate term of 80 years to life consecutive to a determinate term of 1 8 years. Following a successful appeal regar ding a sentencing issue , defendant was resentenced in4

2004 to an indeterminate term of 5 0 years to life consecutive to a determinate term of

30 years, which includ ed a five

- year enhancement for the prior serious felony conviction

. C. CDCR Recommendation for Recall of Sentence and Resentencing

T he Secretary of the CDCR sent a letter to the trial court dated January 9 , 2020

,

stat ing that defendant had been sentenced in 2002 2 and that his sentence included a prior
serious felony enhancement under section 667, subdivision (a)(1). The Secretary
explained that the law had since changed to allow trial courts the discretion to strike a
prior serious felony enhancement (see §§ 667, subd. (a)(1), 1385). T he Secretary

recommended that defendant ’ s sentence be recalled and that he be resentenced in

accordance with section 1170

, former subdivision (d) (now section 1172.1)

. Various
documents were attached to the letter, in cluding documents reflecting defendant’s
participation in A lcoholics A nonymous and N arcotics A nonymous and his prison work
assignments

. D. Trial Court’s First Order Denying Recall and Resentencing
In February 2020, the trial court declined to recall defendant’s sentence. The court

indicated that although a legislative chang e had given courts the discretion to strike the
punishment for a serious felony enhancement, defendant’s case had been final for many
years by that time. The court stated that it was declining to use its authority to recall

defendant’s sentence “ simply to avoid the lack of retroactivity” regarding the discretion

to strike the punishment for the enhancement.

2 The Secretary’s letter indicated that defendant had been convicted in 2002 “for violating section(s) 273” (misdemeanor prohibiting the payment for consent to adoption of a child ). Contrary to the Secretary’s letter, d efendant had not been convicted of violating th is section but rather had been convicted of the three offenses that we have recited above.5

E. Appeal Regarding First Order Denying Recall of Sentence
Defendant appealed, and this court reversed the trial court ’s order. ( People v.

Rami rez ( Sept. 7, 2021 , H04 7929) [nonpub. opn.].) This c ourt determined that
“[a] lthough the impetus for the CDCR’s recommendation under section 1170,

subdivision (d)(1) was the possibility that an ameliorative change in the law could be
applied to [defendant ’s] case, the letter reflected the CDCR’s individualized
recommendation, based on an assessment of multiple factors, that [defendant’s] sentence

should be recalled .” ( Ibid .) This court remanded the matter to the trial court to exercise

its discretion und er then section 1170, subdivision (d)(1) to recall and resentence

defendant.

F. Briefing by the Parties After Remand

After the matter was remanded to the trial court , defendant filed a memorandum of
points and authorities in support of recall and resentencing

. Defendant contended that
although he had suffered a conviction for forced oral copulation, a sexually violent
offense, the incident was remote in time and his “growth in prison and his deep

awareness of his addictio n issues, strongly indicate that he would pose no threat to
anyone, were he to return to society.” Defendant argued that the court should dismiss his
prior strike conviction, his prior serious felony conviction, and the allegation that he
personally commi tted great bodily injury.
Defendant also submitted documents in support of his request . The documents

included a l etter acknowledging the offenses against the victim and a separate letter of
apology to the victim

. He provided certificates reflecting his participation in Alcoholics
Anonymous and Narcotics Anonymous. Defendant also completed a written relapse
prevention plan. Other documents reflected his work in prison as a barber and a porter,

as well as his attendance or participation in various programs such as victim awareness

. Defendant provided documents showing that he had been discipline d in prison for
incidents between 2004 and 2008, but that he had not received any serious disciplin e6

since then

. Further, accordin g to defendant, the documents showed that he was at the
lowest security facility that was possible for a life prisoner serving a sentence for sex ual

assault

- related crimes

. The prosecutor filed written opposition to the request s for resentencing and to
dismiss the prior strike conviction. The prosecutor also provided copies of the reporter’s
transcript of the victim’s testimony from trial

, the probation report that was prepared in
connection with defendant’s original sentencing , and the reporter’s transcript of the
original sentencing hearing

. The prosecutor recounted the facts of the 2001 incident
leading to defendant’s convictions for spousal rape by force, forcible oral copulation, and
infliction of corporal injury on a spou se. The prosecutor contended that defendant had a long history of domestic violence against the victim, including multiple convictions from
1995 through 1998 and 2001 for hitting, slapping, and punching her. The prosecutor also
referred to defendant’s pr ior nine felony convictions , which included a prior strike

conviction for a 1983 robbery, and numerous misdemeanor convictions. Further, the

prosecutor referred to defendant’s rules violations reports for the various periods of time
that defendant had been in prison, including for having an inmate manufactured weapon
(1984 and 1985), attempted assault on another inmate (1985), force/violence on another
inmate (2004), covering a cell window (2006), and f ighting with an inmate (2008). The
prosecutor contended that defendant had not led a crime

- free life since 1985 and his

record now included four violent strikes. The prosecutor argued that while defendant was
to be “commend[ed]

. . . for his programming efforts” while in prison, there was no
“justification” warranting recall and resentencing of defendant.

G. The Hearing Regarding Recall and Resentencing
The trial court held a hearing regarding the CDCR recommendation for recall and
resentencing on October 4, 2022.7 1. Defendant’s Argument

Defendant’s trial counsel argued that defendant should be resentenced because he
was not a danger to society

, his prior serious felony conviction should be stricken, and his
motion to dismiss his prior strike should be granted

. Defense counsel argued that

defendant h ad “committed himself to changing his life” since his last rule s violation in
prison in 2008. Defendant was “clear of the drugs

, ” had “done great work in terms o f
rehabilitating himself in that way,” and he knew that he was “an addict for life.” Defense
counsel argued that the re was “evidence of decreasing dangerousness” because

defendant’s prior strike conviction for the 1985 robbery was remote in time and the

o ffenses in the instant case were from 2001, his “personal acknowledgement of the
damage that he’s done,” and he would be addressing daily his “terrible addiction” which
was “one of the main causes of that damage.”

Defendant sought to make an “apology stat ement” to the victim

, who was outside

the courtroom but declined to be present for the statement. Defendant stated that he was

“ sorry for what happened to [the victim]” ; expresse d being “ashamed of [his] actions
towards [her], the kids, and [her] parents” ; and stated that he took “full responsibility” for
what happened. Defendant stated that he had be en working on his substance abuse and
behavior issues through Narcotics Anonymous and that he had been involved in domestic

violence and victim aware ness courses or groups.

2. The Prosecutor’s Argument
The prosecutor contended that the trial court should not recall defendant’s

sentenc e but, if it did, it should impose the same sentence, in view of the original
probation report and sentencing in the case

. The prosecutor argued that defendant had

an “extended” history of domestic violence against the victim spanning five or six years

which culminated in the violent 2001 incident

. The prosecutor contended that the
original sentencing judge “heard the entir e jury trial” and there was no indication that that
judge “would have granted [defendant] any bit of leniency for the crimes that he8

committed especially considering the domestic violence history . . . and [defendant’s]
criminal history.” The prosecutor argued that defendant went from committing multiple
misdemeanor crimes to committing the strike offense for robbery in 1985, followed by

four or five domestic violence convictions involving the vi ctim in the 1990’s

, and then
committing the instant three offenses which were “horrific crimes

. ” The prosecutor

contended that defendant “present[ed] an increasing level of seriousness and
dangerousness in his criminal conduct.”

The victim made an appear ance in court and made the following statement :

“ 20 years ago when I was asked by the judge at the end of the hearing if I wanted
to make a victim impact statement I declined as I had overwhelming fear and anxiety and
I just wanted to leave the courtroom and put this all behind me. Today I have that same
overwhelming fear and anxiety as I never thought that I would have to visit this part of
my life again. However, this time I feel the need to share with you how fearful I am for
my life and for the life of my family. And I ask the Court to please take into
consideration my following statement when determining [defendant’s] new sentence and
why the Court should not consider reasons for an early release.

“ During my relationship with [defendant] I endured severe physical, mental, and

emotional abuse that still has an impact on my life today. Early on in my relationship

with [defendant] he would tell me, ‘ God made you for me and me for you. ’ What

seemed like a romantic notion at the time eventua lly became a very sinister premonition
for my future with him. During our relationship I tried to leave several times and each

time it resulted in him stalking me. He would call and follow me relentlessly. There

were many times I ’ d be driving alone or w ith my children and all of a sudden I ’ d see him
following me in his car and he would try to get me to pull over. He would wait until I

was alone and would ambush me and try to convince me to reconcile our differences

when I refused he would physically ass ault me and torture me

. . . by twisting my wrists

which has left me with pain and weakness in my wrists that persist to this day.9

“ Afterwards he would apologize and tried to treat the physical damage he caused

me and I would foolishly take him back after feeling bad because I knew he cared for me.

I didn ’ t realize at the time that this vicious cycle was an abusive relationship.

. . . [N] ow, I could tell you hours of stories about how [defendant] would randomly appear when I

had left him, but I will only focus on a few to illustrate why I have a fear of [defendant’s]

release. Like the time I was staying at my parent ’ s house after I had broke up with him

the month before. One night he came to my parent ’ s house late at night after he called
me wanting to come over to talk. I had told him over the phone I was never going back
to him and that my parents would have him arrested for trespassing if he came over, that

didn ’ t stop him. He came over, knocked on my window and started yelling when I told

him t o leave.
“I got scared he would wake up my parents so I told him to go to the front of the
house. When I opened the front door, he grabbed me by the neck and dragged me around

the corner to the next street over. He had a hammer in his waistband.

. . . [M] y brother,
who had lived with my mom at the time and noticed I was missing went looking for

me.

. . . He found me with [defendant] on the next street over and called the police

which led to [defendant’s] arrest. “Several days later my brother and my father took my children to pick walnuts in
the orchard across the street from my parent’s house. It was then that they found
[defendant’s] jacket, cigarette buds, and the bubble gum he always chewed, lying on a
pile on the ground behind a tree across f rom my parent’s house. He had been watching
their house. He always found a way to watch me.

“Another time my [ other ] ex

- husband was bringing our son back from Karate one
evening to my parent ’ s house and saw [defendant] hiding under my father’s vehicle i n my parent’s driveway. My [other] ex

- husband called my parents and got out of his truck to

confront [defendant] , but [defendant] got up and ran off.10

“ And another time [defendant] had broken into my second [

- ] floor apartment

. . . in

San Jose

. . . and hi d inside until I got home.

“ All of these incidents illustrate [defendant’s] dangerous and unpredictable nature
and this is just the stalking side, this doesn ’ t even include the physical abuse that I
endured throughout the relationship. I won ’ t go into de tail on all of that as it makes me

sick to my stomach now.
“However, . . . if you’ve read through the various police reports that were filed
over the years, you’ll have some idea of what I ’ ve experienced, but even these only

scratch the surface. Anyone who knows that domestic violence can be a precursor to
homicide could have seen the warnings from all the reports filed over the years, which
bring me to my final point.

“ . . . [N] ow I want to explain the main reason I don ’ t t hink that [defendant] should

be considered for an early release.

“ [Defendant] was never one to let things go. [Defendant’s] stalking was a symptom of a greater problem of obsession. In February 2010, eight years after
[defendant] was incarcerated for th is crime and a day or two from my daughter ’ s 18th
birthday, my daughter received a piece of mail at my [other] ex

- husband ’ s home with a

return address of my parent ’ s house in San Jose, which had been postmarked from San

Francisco. When my [other] ex

- husba nd saw the piece of mail, he was perplexed as my

parents had sold that home and moved five years earlier to retire to another state and they
would have sent any mail to her to my address where she lived. However, when he gave
it to my daughter, she and I recognized [defendant’s] handwriting. It was a birthday card

for her [. I] t said that he was sorry for what he ’ s done and that he would always love her.
And it said, ‘ love, you know who. ’ It was unnerving and just confirmed that even eight
years later, he was not over the situation.
“What is more alarming is that even after knowing he had a no contact order, he
was able to get out a letter to her from prison via some, sort of, method. . . . [T]hat kind11

of persistence is what scares me and should conc ern the Court. [Defendant] would often

tell me the only way this relationship will ever be over is in your death or mine. That was

not an exaggeration.
“He proved that on the night of the crime when he broke into my home[,] raped
me, stabbed me, physica lly assaulted me, and told me I was going to die that night. I can

still remember the look in his face as he held a knife above my head on that night.

. . . [I] f I didn ’ t cry, plead for my life and call out my daughter ’ s name

. . . over and over and

tel l him what this would do to her as I knew she was the one person in this world I felt he
truly loved, I am certain I would not be here today.

“ If the Court decides to release [defendant] , I want them to remember that

-- those

words and his actions are the reason for my fear. Please don ’ t make me relive the fear of
always having to look over my shoulder or the fear that he may harm my family. I
implore you. I don ’ t feel [defendant] is capable of letting the past go and releasing him
puts me and my family in danger. I am asking the Court to take this into consideration

with its decision. Thank you. ”

3. The Trial Court’s Ruling

The trial court indicated that it was taking a recess “to reflect on what ha[d] been

pr esented ” in the courtroom before announcing its decision regarding resentencing. After

the recess , the court stated that, “[h]aving considered the totality of the circumstances,
including preconviction and postconviction factors,” and having heard from defendant

and the victim , the court was denying the recommendation and request to recall

defendant’s sentence and to resentence him in a “different way

. ” The court stated that the
“original term continues to serve the interest of justice . . . for a varie ty of reasons
including the following:

“ The parties have been in clear agreement that the circumstances of the offenses

for which [defendant] was convicted and for which he has been sentenced are extremely
heinous, violent, terrifying, disturbing, and cer tainly of the nature of crimes for which the12

original sentencing Court and this Court continues to believe that the [L] egislature

intended the most significant consequences to be available to a sentencing Court to
address public safety, punitive consequenc es, rehabilitative efforts in the interest of

victims.
“In this particular case, the Court does believe that there is still an unjustifiable
risk to public safety if [defendant] were to be resentenced or sentenced differently

. . . in

a way that would allow his earlier release from custody.

“ [ Defendant’s ] crimes, as they have been described in the Court files and also as
they were described articulately and I ’ m sure with great difficulty by Ms. Doe today, are

crimes that show the highest degree o f domestic violence, the dynamic of power and
control, controlling behavior and the type of the high degree of lethality that should cause

any sentencing Court significant concern. These crimes were not isolated events, but
reflected a pattern of conduct over a period of significant time in which [defendant]
showed the highest degree of danger, placed Ms. Doe in legitimate and sustained fear.

Fear that continues to this day, fear that, as she expressed continues to exist in her

mind

. . . if [defendant] w ere to potentially be released from custody upon resentencing.

“ This Court believes that the evidence in the case supports Ms. Doe ’ s opinion and

assessment of her own circumstances with respect to her previous and continued
relationship to [defendant] as her abuser and as the criminal offender who has changed
her life for the negative as a result of his criminal behavior, which included not only
sexual assault, but crimes of violence, the use of weapons that were committed while on probation, that were committed at a time when [defendant] . . . had already been
subjected to efforts of substance abuse treatment, that were committed at a time when
[defendant] already had a significant and substantial criminal history of both felony and
misdemeanor conduct, including a serious felony or strike prior conviction in his criminal
history.13

“ As far as postconviction conduct, [defendant] has made some efforts that have

been p resented towards substance abuse rehabilitation and other self

- improvement efforts

while incarcerated. He has suffered rules violations in the state prison. He has also been
apparently free of rules violations for some number of years, but he has experie nced both

in his postconviction history while in the California Department of Corrections and

Rehabilitation.

“ With respect to his rehabilitative efforts, the Court believes that at this hearing
the emphasis that has been put on substance abuse treatment and addiction services while
positive are a far cry from addressing concerns of the root problem, and the root issues

that caused [defendant] to be an extreme offender of sexual assault and domestic violence

and continue to make him an unreasonable risk to public safety today.

“ The issues related to stalking behavior [,] power and control dynamics, threats to

kill in the colloquial, ‘ if I can [sic] have you no one will, ’ the threats to Ms. Doe [] as to

how the relationship between the two of them would [ someday ] end, are still acute.
“[Defendant] still has the capability to carry those threats to conclusion, and the
Court does not believe that his rehabilitative efforts with respect to Narcotics Anonymous

and substance abuse treatment ass uage any of the concerns that the Court would have in
that regard.
“[Defendant] was not a young person when he committed these offenses, although
he is an older person now. And the Court does not believe that there are any particular
mitigating factors t o be had with respect to his age at the time of the offenses.

“ Also, while the Court appreciates [defendant’s] showing of remorse and his

statements in that regard today and does not necessarily find them to lack credibility, the
Court also acknowledges t hat in 2002 at the time of original sentencing [ d efendant] was stating remorse at that time and just as today in considering whether it would be in the
interest of justice . . . to strike any strike prior conviction allegations

. . . and under the
totality of the circumstances.14

“This Court believes that under the totality of the circumstances no exercise of
discretion in that regard would be within the interest of justice then or now based on all

of the circumstances that exist in th is case, the Court believes that even upon a
presumption of recall of sentence and resentencing, that presumption is overcome by risk
to public safety and for these reasons the Court is going to leave the sentence as
previously imposed with no changes.”

II I. DISCUSSION
On appeal, defendant contends that the trial court abused its discretion in declining
to recall and resentence him because the court failed to make the requisite finding that he

pose s an unreasonable risk of committing a super strike offens e. He also argues that

there is no t substantial evidence to support a conclusion that he poses an unreasonable
risk of committing a super strike offense. Defendant requests that the trial court be
directed to recall his sentence and conduct further proce edings.
The Attorney General contends that no abuse of discretion has been shown. The
Attorney General argues that the trial court made the requisite findings and that
substantial evidence supports the trial court’s determination

. A. General Legal Principle s Regarding Recall and Resentencing Under

Section 1172.1
Section 1172.1, subdivision (a) provides that a trial court “may, . . . at any time
upon the recommendation of the secretary [,] . . . recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as if they had not
previously been sentenced, whether or not the defendant is still in custody, and provided
the new sentence, if any, is no greate r than the initial sentence.” This provision

“ authorize s the Secretary of the CDCR to recommend to the superior court that the court
recall a previously imposed sentence and resentence the defendant. [Citations.] The

CDCR recommendation furnishe s the co urt with jurisdiction it would not otherwise have

to recall and resentence and is ‘ an invitation to the court to exercise its equitable15

jurisdiction. ’ [Citation.]” ( People v. McMurray (2022) 76 Cal.App.5th 1035, 1040
[disc ussing former § § 1170, subd. (d) (1) and 1170.03 ] ; see People v. Salgado (2022)

82 Cal.App.5th 376, 378 & fn. 2 [ explaining that recall and resentencing provisions of

former § 1170 , subd

. (d)(1) were moved to new § 1170.03 , which was later renumbered

as § 1172.1 ]

. )
In recalling and resentencing the defendant, “ the court may consider
postconviction factors, including, but not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that reflects whether age,
time served, and dimini shed physical condition, if any, have reduced the defendant ’ s risk
for future violence, and evidence that reflects that circumstances have changed since the
original sentencing so that continued incarceration is no longer in the interest of justice. ”
( § 1 172.1 , subd. (a)( 4).) “T he resentencing court may, in the interest of justice ,”
“[r]educe a defendant’s term of imprisonment by modifying the sentence.” ( Id.

, subd

. (a)(3)(A).)
Relevant here, s ection 1172.1 also provides that if the “resentencing request

. . . is
from the Secretary of the Department of Corrections and Rehabilitation,” then “[t] here

shall be 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

. ” ( Id. , subd. (b)(2), italics added.)
Subdivision (c) of section 1170.18 in turn defines an unreasonable risk of danger to
public safety as “ an unreasonable ri sk that the [ defendant ] will commit a new violent
felony within the meaning of [ section 667, subdivision (e)(2)(C)(iv) ].” (Italics added.)

This “ subdivision of section 667 identifies eight types of particularly serious or violent
felonies, known colloqui ally as ‘ super strikes. ’ ” ( People v. Valencia (2017) 3 Cal.5th

347, 351 , fn. omitted ( Valencia ) .) These super strikes include (1) “[a] ny homicide
offense, including any attempted homicide offense, defined in Sections 187 to 191.5,

inclusive” and (2) a “ ‘sexually violent offense’ as defined in subdivision (b) of16

Section 6600 of the Welfare and Institutions Code .” 3 ( § 667, subd. (e)(2)(C)(iv)(I ), ( I V ).)
A sexually violent offense is a statutorily specified sex crime , including rape (§ 261) and
oral copulation (former § 288a, now § 287)

, “ when committed by force, violence, duress,
menace, fear of immediate and unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future against the victim or any other person .” (Welf. &
Inst. Code, § 6600, subd. (b).)
In this case, the S ecretary of the CDCR recommended recall and resentencing of

defendant to the trial court. Consequently, the statutory presumption favoring recall and
resentencing applies ( § 1172.1, subd. (b)(2))

, and the trial court must find “an
unreasonable risk that the [defendant] will commit a [super strike offense] ” to overcome the presumption. ( § 1170.18, subd. (c); see Valencia

, supra , 3 Cal.5th at p. 351 .) A trial
court’s “general ized concern about [a defendant’s] ‘ ability to continue to commit

crimes ’ ” is not sufficient to overcome the presumption in favor of recall and
resentencing. ( Nijmeddin v. Superior Court (2023) 90 Cal.App.5th 77, 83 [ analyzing
presumption for compassionate release under § 1172.2 ].)

3 The complete list of the eight types of super strikes is as follow s : “(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under 14 years of age and more than 10 years younger than the defendant as defined by S ection 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than the defendant as defined by Section 286, or sexual penetration with another person who is under 14 years of age and more than 10 years younger than the defendant, as defined by Section 289. [¶] (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. [¶] (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, i nclusive. [¶] (V) Solicitation to commit murder as defined in Section 653f. [¶] (VI) Assault with a machinegun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious or violent felony offense punishable in California by life imprisonment or death.” ( § 667, subd. (e)(2)(C)(iv)(I

– VIII).)17

“We apply the abuse of discretion standard of review to a trial court ’ s denial of
recall. [Citations.]” ( People v. E.M . (2022) 85 Cal.App.5th 1075, 1082 ( E.M

. )

. ) “[A]n

abuse of discretion arises if the trial court based its decision . . . on an incorrect legal

standard [citations]

. ” ( People v. Knoller (2007) 41 Cal.4th 139, 156 ( Knoller ) .) Further

,

u nder the abuse of discretion standard, “ a trial court ’ s factual findings are reviewed for

substan tial evidence .” ( In re White (2020) 9 Cal.5th 455, 470 ( White ) .)

B. Analysis
Defendant contends that to overcome the statutory presumption in favor of recall
and resentencing, the trial court had to make a finding that he posed an unreasonable risk
of committing a super strike offense. He argues that the court did not make such a
finding in this case, and therefore the court abused its discretion in declining to recall and
resentence him. Defendant argues that the court simply “focused on what [ he ] could do
rather than the probability that he would do those things” and that the co urt expressed
only a generalized concern about his ability to continue to commit crimes without making
any finding regarding the risk of him committing a super strike offense. (Italics omitted.)

Defendant further contends that there is no substantial evi dence to support a conclusion
that he poses an unreasonable risk of committing a super strike offense.

We determin e that the trial court made the requisite finding that “defendant is an
unreasonable risk of danger to public safety” ( § 1172.1, subd. (b)(2) )

, meaning “ an unreasonable risk that [ he ] will commit a [super strike offense ] ” ( § 1170.18, subd. (c);

see Valencia

, supra , 3 Cal.5th at p. 351 ).
First, t he trial court expressly referred to the likelihood of the risk. The court

stated that there was “ still an unjustifiable risk to public safety if [defendant] were to be
resentenced or sentenced differently ” and that he continue d to be “an unreasonable risk to
public safety today. ” (See §§ 1172.1, subd. (b)(2) , 1170.18, subd. (c).)
Second, t he trial court made it clear that it was addressing the unreasonable risk of
defendant committing super strike offenses , such as sexually violent offenses and murder

.18

(See §§ 1170.18, subd. (c), 667, subd. (e)(2)(C)(iv)(I ), ( I V ) .) In this regard, the court

referred to the commitment offenses , which showed “the highest degree of domestic

violence” and a “high degree of lethality” and which were part of “ a pattern of conduct
over a period of signi ficant time in which [defendant] showed the highest degree of
danger.” The court likewise stated that defendant’s offenses “included not only sexual
assault, but crimes of violence, the use of weapons.” The court explained that “the root
issues that caused [defendant] to be an extreme offender of sexual assault and domestic
violence . . . continue to make him an unreasonable risk to public safety today.” The
court further explained, “ The issues related to stalking behavior [,] po wer and control
dynamics, threats to kill in the colloquial, ‘if I can [sic] have you no one will,’ the threats
to Ms. Doe[] as to how the relationship between the two of them would [someday] end,

are still acute. [¶] [Defendant] still has the capability to carry those threats to

conclusion

. . . .” It is apparent from these statement s that the court believed that not
only was there an unreasonable risk of defendant committing a nother sexually violent
offense, that is, a sex crime such as rape or oral c opulation by force, violence, duress,
menace, or fear (Welf. & Inst. Code, § 6600, subd. (b)) , but that there was also an

unreasonable risk that he would kill the victim

. Third, substantial evidence supports the trial court’s finding that defendant posed

an unreasonable risk of danger of committing a super strike offense, that is a forcible sex

crime or murder. The record reflects that defendant engaged in domestic violence for
years against the victim, culminating in forcible sex acts aga inst her , stabbing her, and
threatening to kill her. As the court explained, defendant’s “substance abuse treatment
and addiction services while positive are a far cry from addressing concerns of the root
problem, and the root issues that caused [defendan t] to be an extreme offender of sexual
assault and domestic violence and continue to make him an unreasonable risk to public
safety today. [¶] The issues related to stalking behavior [,] power and control dynamics,
threats to kill in the colloquial, ‘if I can [sic] have you no one will,’ the threats to19

Ms. Doe[] as to how the relationship between the two of them would [someday] end, are

still acute. ”
We are not persuaded by defendant’s contention that his current age (62 years old)

and lack of recent pris on rules violations i ndicate that he is no longer “ an unreasonable
risk of danger to public safety ” ( § 1172.1, subd. (b)(2)). As the trial court observed about
his convictions for spousal rape by force, forcible oral copulation, and infliction of
corporal injury on a spouse

, defendant , who was 4 0 years old at the time, “ was not a young person when he committed these offenses, although he is an older person now. ”
Defendant does not provide any persuasive argument, let alone evidence or authority,

i ndicating that his current age makes him less likely to commit forcible sex crimes or

murder against a female partner , particularly when, as explained by the trial court, the

record does not reflect that defendant ha s addressed “ the root problem, and the r oot issues
that caused [ him ] to be an extreme offender of sexual assault and domestic violence.”
Defendant similarly fails to persuasively articulate, let alone support with evidence
or authority, how h is apparently recent good behavior while confined in prison with other

inmates equates with a lessened risk of him continuing to engage in violent sex crimes
against

, or the murder of, a female partner. As the trial court found, defendant had
engaged in “a pattern of conduct over a period of sig nificant time in which [ he ] showed
the highest degree of danger” by engaging in “crimes that show the highest degree of
domestic violence, the dynamic of power and control, . . . and the type of

. . . high degree
of lethality” against a n intimate partner. The crimes “ included not only sexual assault,

but

. . . violence, the use of weapons .” As the court explained, d efendant’s “rehabilitative

efforts” had not addressed the “ the root issues that caused [ him ] to be an extreme

offender of sexual assault and domestic violence and continue to make him an
unreasonable risk to public safety today. [¶] The issues related to stalking behavior[,]
power and control dynamics, threats to kill in the colloquial, ‘if I can [sic] have you no
one will,’ the t hreats to Ms. Doe[] as to how the relationship between the two of them20

would [someday] end, are still acute.” His substance abuse treatment did not “assuage
any of the concerns” about him “carry [ing] those threats to conclusion.”

In sum, the trial court’ s statements clearly reflect that it found “defendant is an
unreasonable risk of danger to public safety” ( § 1172.1, subd. (b)(2)) , meaning “ an unreasonable risk that [ he ] will commit a [super strike offense ] ” ( § 1170.18, subd. (c);

see Valencia

, supra , 3 Cal.5th at p. 351 ). Substantial evidence supports the court’s
finding

. The court therefore did not abuse its discretion in concluding that the
presumption in favor of recall and resentencing had been overcome and in declining to

recall and resentence def

endant . ( § 1172.1, subd. (b)(2) ; E.M

. , supra , 85 Cal.App.5th at

p. 1082 ; Knoller

, supra , 41 Cal.4th at p. 156 ; White

, supra , 9 Cal.5th at p. 470.)

IV. DISPOSITION

The order denying recall and resentenc ing of defendant is affirmed.B AMATTRE

- MANOUKIAN, J.

WE CONCUR:

GREENWOOD , P.J.

ADAMS, J. *

People v. Ramirez H0 50583

* Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.