Filed 9/7/21 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 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.

GLEN ALLEN RAMIREZ,

Defendant and Appellant.

 H047929

 (Santa Clara County

 Super. Ct. No. CC120254)

In 2002, a jury convicted defendant Glen Allen Ramirez of spousal rape (Pen. 

Code, § 262, subd. (a)(1)),1forcible oral copulation (former § 288a, subd. (c)(2)) and 

infliction of corporal injury on a spouse (§ 273.5, subd. (a)). The trial court sentenced 

Ramirez to a total term of 80 years to life consecutive to 18 years, which included a 

five-year enhancement for a prior serious felony conviction under section 667, 

subdivision (a). 

In 2020, the secretary of the Department of Corrections and Rehabilitation 

(CDCR) wrote a letter to the trial court recommending that Ramirez’s sentence be 

recalled under section 1170, subdivision (d)(1). In its letter, the CDCR cited to recent 

legislative amendments that now permit a trial court to exercise its discretion to strike 

prior serious felony convictions under section 1385. The trial court declined to recall 

Ramirez’s sentence “simply to avoid the lack of retroactivity” of Senate Bill No. 1393. 

1 Unspecified statutory references are to the Penal Code.
2

On appeal, Ramirez argues that the trial court abused its discretion by failing to 

recognize the full breadth of its discretion to recall his sentence and by failing to give him 

the opportunity to provide information in support of the CDCR’s recommendation. 

Ramirez further argues that the CDCR’s filing of a letter recommending recall of his 

sentence triggered his Sixth Amendment right to counsel, and the trial court erroneously 

found it lacked the authority to strike his prior serious felony conviction. The Attorney 

General agrees that remand is appropriate because the trial court did not exercise 

informed discretion when it declined to recall Ramirez’s sentence. We reverse and 

remand the matter to the trial court to exercise its discretion under section 1170, 

subdivision (d)(1).

I. BACKGROUND

A. Ramirez’s Offenses, Conviction, and Sentence2

On March 18, 2002, Ramirez was charged by information with forcible spousal 

rape (§ 262, subd. (a)(1); count 1), forcible oral copulation (former § 288a, subd. (c)(2)); 

count 2), and infliction of corporal injury on a spouse (§ 273.5, subd. (a); count 3). As to 

all three counts, it was alleged that Ramirez personally used a deadly or dangerous 

weapon (§ 12022.3) and inflicted great bodily injury (§§ 12022.7, 12022.8). It was also

alleged that Ramirez had a prior strike (§§ 667, subd. (b)-(i), 1170.12) and a prior serious 

felony conviction (§ 667, subd. (a)). 

On April 26, 2002, a jury convicted Ramirez of all the charged counts. The trial 

court sentenced Ramirez to 50 years to life on count 1, 30 years to life on count 2, and 18 

years for count 3, for an aggregate term of 80 years to life consecutive to 18 years. 

2 The underlying facts of Ramirez’s offenses are not relevant to the issues raised 

on appeal. A detailed recitation of the factual and procedural background of this case can 

be found in this court’s unpublished opinion in Ramirez’s prior appeal (People v.

Ramirez (April 21, 2004, H024432) [nonpub. opn.]). We previously granted Ramirez’s 

request for judicial notice of this court’s unpublished opinion.
3

The sentence included a five-year enhancement for Ramirez’s prior serious felony 

conviction under section 667, subdivision (a). 

B. The CDCR’s Letter

On January 9, 2020, the CDCR wrote a letter to the trial court. The letter stated, 

“The purpose of this letter is to provide the court with authority to resentence [Ramirez] 

pursuant to Penal Code section 1170, subdivision (d).” The letter went on to state, “This 

section provides that, upon recommendation of the [CDCR], the court may recall a 

previously ordered sentence and commitment, and resentence the defendant in the same 

manner as if he had not previously been sentenced, provided the new sentence is no 

greater than the initial sentence.” 

The CDCR’s letter then stated: “Inmate Ramirez was sentenced in 2002 following 

his conviction for violating section(s) 273. Furthermore, Ramirez’s sentence was 

enhanced pursuant to section 667, subdivision (a)(1). That section provides for the 

imposition of a consecutive five-year enhancement on any person convicted of a serious 

felony for each previous conviction of a serious felony (or other qualifying conviction) 

brought and tried separately. [¶] Courts were previously barred from striking prior serious 

felony convictions for purposes of enhancement under this section. However, effective 

September 30, 2018, courts are now authorized to exercise their discretion to strike prior 

serious felony convictions for purposes of enhancement under this section, or to strike the 

punishment for the enhancement under this section, pursuant to section 1385. [¶] In light 

of the court’s newfound authority to not impose a consecutive enhancement pursuant to 

section 667, subdivision (a)(1) (authority which did not exist at the time of Ramirez’s

sentencing) I recommend that inmate Ramirez’s sentence be recalled and that he be 

resentenced in accordance with section 1170, subdivision (d).” 

The CDCR attached various supporting documents to its letter, including 

documents that showed Ramirez’s completion of self-help programs while incarcerated, 
4

his participation in prison work assignments, and his prison disciplinary record, which 

showed that he had no disciplinary violations. 

C. The Trial Court’s Order

On February 19, 2020, the trial court declined to recall Ramirez’s sentence. In its 

written order, the trial court stated: “The [CDCR’s] request states one justification for 

the recommendation [to recall Ramirez’s sentence]: that Mr. Ramirez’[s] sentence 

includes a 5-year enhancement (Pen. Code, section 667(a)) and as of January 1, 2018, 

SB 1393 gave trial courts the authority to stay or strike the punishment for these 

enhancements. [¶] SB 1393 applies to any case not final on appeal when the law went 

into effect. [Citation.] Mr. Ramirez’[s] case, however, had been final on appeal for 

many years as of January 1, 2018. This court declines to extend the reach of SB 1393 to 

cases final on appeal as of January 1, 2018. If the [L]egislature desired that SB 1393 be 

retroactive, it could have included specific language in the statute specifying such a 

desire. [¶] While this court recognizes that a recommendation from the [CDCR] gives this

court the authority to recall a sentence, the court will decline to use that authority simply 

to avoid the lack of retroactivity of SB 1393. [¶] As this was the only reason stated in the 

recommendation, the court declines the invitation to recall the sentence in this case. The 

sentence will remain as originally ordered.” 

II. DISCUSSION

Ramirez argues that remand is required because the trial court’s decision not to 

recall his sentence demonstrates that it misunderstood the scope of its discretion under 

section 1170, subdivision (d)(1). Ramirez further argues that the trial court erroneously 

declined to recall his sentence without giving him an opportunity to respond, and the 

filing of the CDCR’s recommendation letter triggered the Sixth Amendment right to 

counsel. Lastly, Ramirez argues that Senate Bill No. 1393 is applicable to his case

should the trial court decide to recall his sentence under section 1170, subdivision (d)(1).
5

A. General Legal Principles and Standard of Review 

“Section 1170[, subdivision] (d) is an exception to the common law rule that the 

court loses resentencing jurisdiction once execution of sentence has begun.” (Dix v. 

Superior Court (1991) 53 Cal.3d 442, 455 (Dix).)

Under section 1170, subdivision (d)(1), the trial court may, “at any time upon the 

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

ordered and resentence the defendant in the same manner as if they had not previously 

been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” 

“[T]he [CDCR’s] recommendation letter is but an invitation to the court to exercise its 

equitable jurisdiction.” (People v. Frazier (2020) 55 Cal.App.5th 858, 866 (Frazier).) 

When resentencing, “[t]he 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.” (§ 1170, 

subd. (d)(1).) 

Administrative regulations describe when the CDCR may recommend that a trial 

court recall an inmate’s sentence, which includes “[w]hen there is a change in sentencing 

law . . . .” (Cal. Code of Regs., tit. 15, § 3076.1, subd. (a)(3).) The CDCR may 

recommend recalling an inmate’s sentence under section 1170, subdivision (d)(1) if “the 

applicable sentencing laws at the time of [the inmate’s] sentencing hearing are 

subsequently changed due to new statutory or case law authority with statewide 

application.” (Cal. Code of Regs., tit. 15, § 3076.1, subd. (d)(1).) However, an inmate 

will be excluded from recommendation under certain circumstances even if there is new 

statutory or case law authority. (Id., subd. (d)(2).) For example, inmates who have not 

yet served five continuous years or 50 percent of their current commitment or inmates 
6

who have been found guilty of certain serious or violent rules violations are excluded 

from consideration under the administrative regulations. (Id., subd. (d)(2)(A) & (B).) 

Initial eligibility is determined by the Classifications Services Unit or the Correctional 

Case Records Unit, and once an inmate is found eligible, a cumulative case summary is 

prepared, and the matter is referred to the CDCR. (Id., subd. (d)(3), (d)(3)(B).) The 

CDCR must reach a decision on any referred matters within 10 business days (id., 

subd. (e)(1)) of its receipt, and, pursuant to the CDCR’s “broad discretion,” the CDCR’s 

decision is final and not subject to administrative review. (Id., subd. (e)(4).)

The trial court may exercise its authority to recall a sentence under section 1170, 

subdivision (d)(1) for “any reason rationally related to lawful sentencing.” (Dix, supra, 

53 Cal.3d at p. 456.) We review the trial court’s decision whether to recall a sentence 

under section 1170, subdivision (d)(1) for an abuse of discretion. (People v. McCallum 

(2020) 55 Cal.App.5th 202, 211 (McCallum).) “An abuse of discretion may be shown 

where the trial court was mistaken about the scope of its discretion.” (People v. Zeigler

(2012) 211 Cal.App.4th 638, 668 (Zeigler).)

B. Scope of the Trial Court’s Discretion Under Section 1170, subdivision (d)

Ramirez argues that the CDCR’s recommendation to recall his sentence was not 

based solely on his prior serious felony conviction. Ramirez also argues that the trial 

court was not confined to resentence him only on the basis recommended by the CDCR. 

Thus, Ramirez insists that the trial court erroneously focused on the question of whether 

Senate Bill No. 1393 applied to his case and “failed to recognize the full breadth of 

discretion conferred upon it by virtue of the [CDCR’s] recommendation.” 

The Attorney General agrees with Ramirez and argues that “the trial court did not 

exercise informed discretion with respect to the [CDCR’s] recommendation.” The 

Attorney General claims that “[i]t is evident that the court misunderstood the [CDCR’s] 

letter as an effort to subvert legislative intent by recommending that appellant receive the 

retroactive benefit of a change in law that was not otherwise retroactive to final 
7

judgments.” The Attorney General notes that the letter could have been clearer in 

explaining the basis for the recommendation for recall of Ramirez’s sentence. However, 

“[r]ather than an attempt to subvert the retroactivity limitation of SB 1393, the 

recommendation was the product of a multilevel, individualized determination that 

appellant was suitable for resentencing.” Thus, the Attorney General agrees with 

Ramirez that “[b]ecause the trial court apparently did not appreciate the individualized 

nature of the [CDCR’s] recommendation, remand is appropriate for the court to exercise 

its informed discretion regarding whether to grant or deny recall and resentencing.” 

After a careful review of the trial court’s written order declining to recall 

Ramirez’s sentence, we agree that remand is appropriate. In its written order, the trial 

court correctly concluded that Senate Bill No. 1393 retroactively applies only to those 

judgments that are not yet final. (See People v. Stamps (2020) 9 Cal.5th 685, 693, 699.) 

The trial court, however, mistakenly believed that the CDCR’s recommendation was an 

attempt “to avoid the lack of retroactivity of SB 1393.” Although 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 Ramirez’s case, the letter reflected 

the CDCR’s individualized recommendation, based on an assessment of multiple factors, 

that Ramirez’s sentence should be recalled. (Cal. Code of Regs, tit. 15, § 3076.1, 

subds. (d), (e)(4).) The individualized nature of this assessment is evidenced by the 

documents attached to the recommendation letter that showed Ramirez’s participation in 

self-help programs, his participation in work assignments, and his prison disciplinary 

record. 

The trial court in this case decided not to recall Ramirez’s sentence because it 

“decline[d] to extend the reach of SB 1393 to cases final on appeal as of January 1, 

2018,” and it “decline[d] to use that authority simply to avoid the lack of retroactivity of 

Senate Bill 1393.” Although the trial court may exercise its authority to recall a sentence 

under section 1170, subdivision (d) for “any reason rationally related to lawful 
8

sentencing” (Dix, supra, 53 Cal.3d at p. 456), it appears that the trial court misunderstood 

the nature of the CDCR’s recommendation and instead relied on principles of 

retroactivity and its determination that Senate Bill No. 1393 should not apply to final 

judgments. The trial court also erroneously appears to have believed that it was confined 

to resentencing Ramirez based solely on the ground identified by the CDCR in its letter

and that upon resentencing, it could only exercise its discretion to strike the prior serious 

felony conviction. Section 1170, subdivision (d)(1), however, provides for no such 

limitation and states that upon recall of a defendant’s sentence, the trial court may 

“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.” 

Thus, upon recalling a sentence under section 1170, subdivision (d)(1), the trial court is 

entitled to reconsider all of its sentencing choices. “[T]he resentencing authority 

conferred by section 1170[, subdivision] (d) is as broad as that possessed by the court 

when the original sentence was pronounced.” (Dix, supra, 53 Cal.3d at p. 456.)

Accordingly, the trial court appears to have been “mistaken about the scope of its 

discretion” to recall Ramirez’s sentence under section 1170, subdivision (d). (Zeigler, 

supra, 211 Cal.App.4th at p. 668.) We therefore vacate the trial court’s order and remand 

the matter so that the trial court may exercise its informed discretion and decide whether 

to recall Ramirez’s sentence. We express no opinion on how the trial court should 

exercise its discretion on remand.

3

3 We note that the Attorney General argues that when rendering its decision on 

remand, the trial court “must consider [Ramirez’s] postconviction conduct in prison.” 

Section 1170, subdivision (d)(1), however, provides that the trial court “may consider 

postconviction factors” such as prison disciplinary records when making its resentencing 

determination. (Italics added.) There is nothing in the statutory scheme that requires the 

trial court to consider prison disciplinary records. 
9

C. Applicability of Senate Bill No. 1393

Ramirez argues that should the trial court decide to recall his sentence under 

section 1170, subdivision (d)(1), the trial court has the authority to decide whether to 

strike his prior serious felony conviction under section 1385 given the enactment of 

Senate Bill No. 1393. The Attorney General agrees that if Ramirez’s sentence is recalled, 

Senate Bill No. 1393 would apply. 

The California Supreme Court is presently considering a related issue in the 

context of the applicability of Proposition 57 in several cases including People v. 

Federico (2020) 50 Cal.App.5th 318, review granted August 26, 2020, S263082 and

People v. Padilla (2020) 50 Cal.App.5th 244, review granted August 26, 2020, S263375. 

In granting review of Padilla, the Supreme Court stated: “This case presents the 

following issue: 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?”

We do not reach the issue of the applicability of Senate Bill No. 1393. The trial 

court is not required to follow the CDCR’s recommendation to recall Ramirez’s sentence,

and it would be premature for us to decide whether the trial court can exercise its 

discretion to strike the prior serious felony enhancement under section 1385. Therefore, 

we believe that it is appropriate for the trial court to consider this issue in the first 

instance if it decides to recall Ramirez’s sentence under section 1170, subdivision (d)(1).

D. Ability to Present Materials in Support of the CDCR’s Recommendation 

Next, Ramirez argues that he must be given the opportunity to submit information 

and present supplemental materials in support of the CDCR’s recommendation.4

4

In his opening brief, Ramirez claims that there is nothing in the record that 

reflects that the CDCR’s recommendation letter was forwarded to him. We disagree. 

The record reflects that the trial court received the CDCR’s letter on January 21, 2020. 

(continued)
10

Since we remand the matter back to the trial court, Ramirez will be given the opportunity 

present supplemental materials. Moreover, the trial court will be required to consider the 

materials, if any, that Ramirez submits. (See McCallum, supra, 55 Cal.App.5th at p. 217 

[“upon a request by [the inmate], the trial court was required to consider evidence in 

support of the [CDCR’s] recommendation”].)

E. Right to Counsel

Finally, Ramirez argues that the CDCR’s filing of a letter recommending recall of 

his sentence triggered his Sixth Amendment right to counsel. 

The Second District rejected a nearly identical argument in Frazier, supra, 55 

Cal.App.5th 858. In Frazier, the Court of Appeal held that “the Sixth Amendment right 

to counsel at critical stages of a criminal proceeding through sentencing does not apply to 

postjudgment collateral changes [citations], including statutory petitions seeking a more 

ameliorative sentence [citations], at least prior to the actual recall of sentence.” (Id. at 

pp. 865-866.) Frazier held that the filing of a recommendation letter under section 1170, 

subdivision (d)(1) “furnishes the court with the jurisdiction it would not otherwise 

possess to recall and resentence; it does not trigger a due process right to a hearing 

[citation], let alone any right to the recommended relief.” (Frazier, supra, at p. 866.) 

In its decision, Frazier noted that a summary refusal to follow the CDCR’s 

recommendation under section 1170, subdivision (d)(1) is an appealable postjudgment 

According to the applicable administrative regulations, if the CDCR elects to recommend 

an inmate for recall and resentencing, “a recommendation letter and Cumulative Case 

Summary shall be forwarded to the sentencing court and a copy shall be provided to the 

inmate and another copy placed in the inmate’s central file within 10 business days of the 

decision.” (Cal. Code of Regs., tit. 15, § 3076.1, subd. (e)(2).) There is nothing in the 

record to reflect that Ramirez did not receive a copy of the letter as required under the 

relevant regulations, and in the absence of any contrary indications, we must “presume[] 

that official duty has been regularly performed.” (Evid. Code, § 664.) Regardless, since 

we remand the matter to the trial court, Ramirez will have the opportunity to submit 

materials on his own behalf. 
11

order affecting a defendant’s substantial rights. (Frazier, supra, 55 Cal.App.5th at 

p. 867; see People v. Loper (2015) 60 Cal.4th 1155, 1168 [denial of recommendation for 

compassionate release under § 1170, subd. (e) is appealable postjudgment order affecting 

substantial rights].) Frazier, however, concluded that “[t]here simply is no constitutional 

right to counsel or a hearing in connection with every postjudgment request with the 

potential to affect a substantial right.” (Frazier, supra, at p. 867.) For example, the 

summary denial of a petition for recall and resentencing under Proposition 36 is an 

appealable postjudgment order affecting a defendant’s substantial rights. (Frazier, supra, 

at p. 867; Teal v. Superior Court (2014) 60 Cal.4th 595, 601 [denial of petition for 

resentencing under Proposition 36 is appealable].) Due process, however, does not 

require a hearing on the trial court’s initial eligibility determination under Proposition 36. 

(Frazier, supra, at p. 867; People v. Oehmigen (2014) 232 Cal.App.4th 1, 7-8 [due 

process requires no hearing on a defendant’s eligibility for Proposition 36 relief].) 

We find Frazier persuasive and conclude that the filing of a “recommendation 

letter inviting the court to exercise its jurisdiction pursuant to section 1170, 

subdivision (d)(1), to recall a sentence, without more, does not trigger a due process right 

to counsel.” (Frazier, supra, 55 Cal.App.5th at p. 869.) Our conclusion is limited to 

Ramirez’s contention that he has a right to counsel based solely on the CDCR’s filing of 

a recommendation letter. We are not called upon to consider whether Ramirez would 

have a due process right to counsel should the trial court elect to recall his sentence.

III. DISPOSITION

The trial court’s February 19, 2020 order is reversed, and the matter is 

remanded to the trial court to exercise its discretion under Penal Code section 1170, 

subdivision (d)(1) to recall and resentence defendant.
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

DANNER, J.

People v. Ramirez

H047929