Filed 3/13/24 P. v. Boone CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

VELTON BOONE,

Defendant and Appellant.

 B328913

 (Los Angeles County

 Super. Ct. No. BA326464)

APPEAL from an order of the Superior Court, Los Angeles 

County, Larry P. Fidler, Judge. Affirmed.

Wayne C. Tobin, 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, Scott A. Taryle, Supervising Deputy 

Attorney General, and Blythe Leszkay, Deputy Attorney General, 

for Plaintiff and Respondent.
2

INTRODUCTION

Velton Boone appeals from the superior court’s order 

denying a recommendation by the Secretary of the Department of 

Corrections and Rehabilitation to recall his sentence and 

resentence him under Penal Code section 1172.1.1 Boone argues

that, after the superior court declined to vacate his sentence, the 

court erred in failing to consider reducing his sentence. Because 

section 1172.1 does not require the court to consider such a 

reduction where, as here, the court finds the defendant currently 

poses an unreasonable risk of danger to public safety, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Boone of Aggravated Kidnapping 

and Other Crimes, and We Mostly Affirm

Early one morning in July 2007, Boone and a companion 

entered a supermarket through the delivery door and pointed 

their guns at a truck driver in the warehouse. Either Boone or 

his companion shoved a gun into the driver’s chest. The two men 

took the driver to an adjacent room in the back of the store, tied 

his wrists with a cord, left for a few minutes, returned, untied 

him, and told him to find the store manager. After the driver 

located the manager, Boone and his associate forced the driver 

and manager to walk to one of the aisles of the store, where two 

other store employees were trying to hide. Boone and his 

companion told all four employees to lie face down on the floor. 

Boone ordered the manager to open the store safes and place 

1 Statutory references are to the Penal Code.
3

$1,800 (the contents of the safes) into a bag in a milk crate. 

Boone and his companion walked toward the loading dock, but 

when they discovered the police had surrounded the store, they 

went back inside. After a stand-off with the police, officers 

entered the store and found Boone hiding. (People v. Boone, 

Aug. 25, 2011, B223335 [nonpub. opn.] (Boone I).)

A jury convicted Boone on two counts of kidnapping to 

commit robbery (aggravated kidnapping) (§ 209, subd. (b)(1)), 

attempted second degree robbery (§§ 211, 664), second degree 

burglary (§ 459), and four counts of assault with a firearm (§ 245, 

subd. (a)(2)). The jury also found true firearm-use allegations 

under sections 12022.53, subdivision (b), and 12022.5, 

subdivision (a). In a bifurcated proceeding, the trial court found 

Boone had suffered four prior convictions or adjudications for 

felonies (three for robbery and one for murder) that were serious 

or violent felonies within the meaning of the three strikes law 

(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and serious felonies

under section 667, subdivision (a)(1). The court sentenced Boone 

to an aggregate prison term of 262 years to life. (Boone I, supra, 

B223335.)

Boone appealed, arguing that substantial evidence did not 

support his convictions for aggravated kidnapping, that the trial 

court erred in denying his motions under People v. Marsden

(1970) 2 Cal.3d 118 to replace appointed counsel and under 

Faretta v. California (1975) 422 U.S. 806 to represent himself, 

and that the admission of certain expert witness testimony 

violated his Sixth Amendment right to confrontation. We 

reversed one of the convictions for aggravated kidnapping, 

modified the judgment to correct an unauthorized sentence, and 
4

otherwise affirmed the judgment. On remand the trial court 

reduced Boone’s sentence to 105 years to life.2

B. The Superior Court Denies the Secretary’s Request

To Recall Boone’s Sentence

On September 8, 2022 the Secretary wrote a letter to the 

superior court recommending that, based on Boone’s commitment 

offense and his conduct in prison, the court recall Boone’s 

sentence and resentence him under section 1172.1,

subdivision (a)(1). The Secretary stated that, effective 

January 2019, section 1385 gave the court the discretion to strike 

enhancements under section 667, subdivision (a), for prior serious 

felony convictions. The Secretary observed that the trial court 

had imposed 12 such enhancements and that Boone would not be 

eligible for parole until 2087. 

The superior court appointed counsel to represent Boone. 

Counsel for Boone filed a memorandum in support of the 

Secretary’s recommendation, arguing that Boone’s record of 

rehabilitation and plan to reenter society supported the 

Secretary’s recommendation, that Boone’s continued 

incarceration was no longer in the interest of justice, and that 

Boone did not pose an unreasonable risk to public safety if 

released. 

2 It appears the trial court did not follow the direction in 

footnote 16 of our opinion in Boone I that, as a result of our 

decision to reverse one of the convictions for aggravated 

kidnapping and strike one of the firearm enhancements, the 

aggregate prison term for Boone should be 195 years to life. 

(Boone I, supra, B223335.)
5

At the hearing counsel for Boone argued that Boone had 

served 13 years of his sentence, that he had not violated any 

prison rules and had participated in self-help programs, and that 

prison officials had commended him for his work and positive 

behavior. Counsel acknowledged that Boone had a prior “super 

strike” (a juvenile court adjudication for murder), but stated that, 

given Boone’s age (64 years old) and his physical disabilities, he 

did not pose a risk to public safety. The prosecutor argued that 

Boone posed an undue risk of danger to public safety because he 

had two convictions or adjudications for felonies that qualified as 

super strikes, the murder he committed as a juvenile and the 

aggravated kidnapping conviction in this case. The prosecutor 

added that Boone had three other robbery convictions involving 

firearms, as well as a federal conviction for armed robbery of a 

post office, all of which demonstrated what he was “likely to do 

once he is out in the community.” 

The superior court stated that, although Boone had “done 

well within the institution,” the court remembered “this 

particular case” and found the crime “was an egregious and 

aggravated offense.” The court reviewed Boone’s criminal history

and stated: “What really bothers me about this case is the 

continued use of firearms when [Boone is] out. You cannot ignore 

that. You can’t pretend it’s not happening. And outside of prison 

and inside of prison are two completely different things.” The 

court ruled it could not “in good conscience possibly think of 

returning him to society when he has served 13 years of a 105-

year[-to-life] sentence” (which, as noted, should have been a 195-

to-life sentence) and expressed concern Boone “apparently knows 

how to arm himself.” The court determined Boone “would 

clearly” endanger public safety if the court allowed his release. 
6

The court denied the request of the Secretary to recall his 

sentence, and Boone timely appealed. 

DISCUSSION

Boone does not argue the superior court erred in finding he 

currently poses an unreasonable risk of danger to public safety. 

Instead, he contends that, when the Secretary asked the superior 

court to recall his sentence and resentence him under 

section 1172.1, subdivision (a)(3)(A), the statute required the 

court to consider reducing his sentence. According to Boone, the 

court “is required under section 1172.1, subdivision(a)(3)(A) to 

consider a reduction in the sentence upon receiving a

recommendation from the Secretary even though it declines to 

vacate the conviction and release the defendant under 

section 1172.1, subdivision(a)(3)(B).” Boone asserts “the plain 

language of the statute . . . requires the court to at least consider 

reduction of the sentence after the Secretary submits a 

recommendation for recall.” The text of section 1172.1 does not 

support Boone’s contention.

A. Applicable Law and Standard of Review

“‘“‘Under settled canons of statutory construction, in 

construing a statute we ascertain the Legislature’s intent in 

order to effectuate the law’s purpose. [Citation.] We must look to 

the statute’s words and give them their usual and ordinary 

meaning. [Citation.] The statute’s plain meaning controls the 

court’s interpretation unless its words are ambiguous.’”’” (People 

v. Pillsbury (2021) 69 Cal.App.5th 776, 784; see People v. 

McCallum (2020) 55 Cal.App.5th 202, 211-212 [“‘“‘We interpret 
7

relevant terms in light of their ordinary meaning, while also 

taking account of any related provisions and the overall structure 

of the statutory scheme to determine what interpretation best 

advances the Legislature’s underlying purpose.’’””].) “The proper 

interpretation of a statute is a question of law we review 

de novo.” (People v. Lewis (2021) 11 Cal.5th 952, 961; see People 

v. E.M. (2022) 85 Cal.App.5th 1075, 1082; McCallum, at p. 211.)

B. Section 1172.1 Does Not Require the Court 

To Consider Reducing the Defendant’s Sentence if the 

Court Determines the Defendant Poses an 

Unreasonable Risk of Danger to Public Safety

Section 1172.1, subdivision (a)(1) (former section 1170, 

subdivision (d)(1)),

3 authorizes the superior court, at any time 

upon the recommendation of (among others) the Secretary, to 

“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 greater 

3 In January 2022 the Legislature moved former 

section 1170, subdivision (d)(1), to former section 1170.03. The 

Legislature clarified that, when recalling a sentence and 

resentencing the defendant, the court should apply “any changes 

in law that reduce sentences or provide for judicial discretion” 

and added a presumption in favor of recall and resentencing. 

(See former § 1170.03, subds. (a)(2), (b)(2); People v. McMurray

(2022) 76 Cal.App.5th 1035, 1040.) In June 2022 the Legislature 

renumbered former section 1170.03 to section 1172.1, but made 

no substantive changes to the statute. (People v. Braggs (2022) 

85 Cal.App.5th 809, 818.)
8

than the initial sentence.”

4 (See People v. Loper (2015) 60 Cal.4th

1155, 1165; People v. McMurray (2022) 76 Cal.App.5th 1035, 

1040; People v. McCallum, supra, 55 Cal.App.5th at p. 205-206.) 

When the Secretary asks the court to recall the defendant’s 

sentence and resentence the defendant,

5 section 1172.1, 

subdivision (b)(1), prescribes the procedures the court must 

follow. Section 1172.1, subdivision (b)(2), provides: “There shall 

be a presumption favoring recall and resentencing of the 

defendant, which may only be overcome if a court finds the 

defendant currently poses an unreasonable risk of danger to 

public safety, as defined in subdivision (c) of Section 1170.18.” 

(See People v. Vaesau (2023) 94 Cal.App.5th 132, 143.)

Section 1170.18, subdivision (c), defines an “‘unreasonable risk of 

danger to public safety’” as “an unreasonable risk that the 

petitioner will commit a new violent felony within the meaning of 

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) 

of Section 667.” “This ‘subdivision of section 667 identifies eight 

types of particularly serious or violent felonies, known 

colloquially as “super strikes.”’” (People v. Braggs, supra, 

4 The Board of Parole Hearings (for a defendant in prison), 

the county correctional administrator (for a defendant in jail), the 

district attorney (of the county where the defendant was 

sentenced), or the attorney general (if the Department of Justice 

originally prosecuted the case) may also make the 

recommendation. In addition, the court on its own motion may

recall the sentence and resentence the defendant. (§ 1172.1, 

subd. (a)(1).)

5 Or any one of the other executive branch officials listed in 

section 1172.1, subdivision (a)(1) (but not the court on its own 

motion).
9

85 Cal.App.5th at p. 818; see § 667, subd. (e)(2)(C)(iv).) The list 

includes any “homicide offense, including any attempted 

homicide offense, defined in Sections 187 to 191.5, inclusive,” and

any “serious or violent felony offense punishable in California by 

life imprisonment or death.” (§ 667, subd. (e)(2)(C)(iv); see 

Braggs, at p. 818, fn. 5.) Section 1172.1, subdivision (a)(3), 

provides that, when the court recalls a defendant’s sentence, the 

court may, in the interest of justice: “(A) Reduce a defendant’s 

term of imprisonment by modifying the sentence. [¶] (B) Vacate 

the defendant’s conviction and impose judgment on any 

necessarily included lesser offense or lesser related offense, 

whether or not that offense was charged in the original pleading, 

with the concurrence of the defendant, and then resentence the 

defendant to a reduced term of imprisonment.”

6

The language of section 1172.1, subdivision (b)(2), provides 

that the presumption favoring recall and resentencing is 

overcome where, as here, the court finds the defendant poses an 

unreasonable risk of danger to public safety (a finding Boone does 

not challenge). Because the court made this finding and did not 

recall Boone’s sentence and resentence him, section 1172.1, 

subdivision (a)(3)(A), which authorizes the “resentencing court” to 

6 At the time of Boone’s hearing, section 1172.1, 

subdivision (a)(3)(B), authorized the court to vacate the 

defendant’s conviction and impose judgment on any necessarily 

included lesser offense or lesser related offense, “with the 

concurrence of both the defendant and the district attorney of the 

county in which the defendant was sentenced.” Effective 

January 1, 2024, section 1172.1, subdivision (a)(3)(B), provides 

the court may vacate the defendant’s conviction and impose 

judgment on a lesser offense “with the concurrence of the 

defendant.”
10

reduce a defendant’s term of imprisonment, did not apply. 

Contrary to Boone’s assertion, nothing in section 1172.1 requires 

the superior court to consider reducing the defendant’s sentence

after the court has found that releasing the defendant will 

endanger public safety. And we may not read such a requirement 

into the statute. (See People v. Vaesau, supra, 94 Cal.App.5th at 

p. 150 [“‘it is not the proper function of the courts to supply 

legislative omissions from a statute in an attempt to make it 

conform to a presumed intention of the Legislature not expressed 

in the statutory language’”]; People v. Superior Court (2023) 

87 Cal.App.5th 373, 379 [“[t]he court ascertains and declares 

what is in the statute; it does not omit what has been inserted or 

insert what has been omitted”]; People v. Bell (2015) 

241 Cal.App.4th 315, 342 [“when construing ‘any statute, we may 

not broaden or narrow the scope of the provision by reading into 

it language that does not appear in it or reading out of it 

language that does’”].) Where the court has found releasing the 

defendant would endanger the public, there is no point in 

requiring the court to consider whether to reduce his or her 

sentence.

Our rejection of Boone’s proposed interpretation of 

section 1172.1, subdivisions (a)(3)(A) and (b)(2), is supported by 

the language of section 1172.1, subdivision (a)(1). (See In re N.R.

(2023) 15 Cal.5th 520, 538 [courts “do not examine [statutory]

language in isolation, but in the context of the statutory 

framework as a whole in order to determine its scope and purpose 

and to harmonize the various parts of the enactment” (internal 

quotation marks omitted)]; People v. Curiel (2023) 15 Cal.5th 433, 

461 [courts “must harmonize the various parts of a statutory 

enactment . . . by considering the particular clause or section in 
11

the context of the statutory framework as a whole” (internal 

quotation marks omitted)].) The order in which the phrases 

“recall the sentence” and “resentence the defendant” appear 

shows the Legislature contemplated two distinct steps, first 

recall, then resentence. (See Dix v. Superior Court (1991) 

53 Cal.3d 442, 456 [“[o]nce the sentence and commitment have 

validly been recalled,” former section 1170, subdivision (d),

“authorizes the court to ‘resentence . . . in the same manner as 

if [the defendant] had not previously been sentenced’”]; People v. 

E.M., supra, 85 Cal.App.5th at p. 1082 [“‘A trial court, upon 

receiving a section 1170, subdivision (d)(1) letter from the 

[Secretary], has broad discretion whether to recall the existing 

sentence and resentence the incarcerated individual.’”]; People v 

Pillsbury, supra, 69 Cal.App.5th at p. 785 [“once the 

recommendation was made by the Secretary, it was within the 

authority of the trial court to recall [the] defendant’s sentence 

and then resentence him by exercising its discretion to dismiss or 

strike the firearm enhancement”].) If the superior court decides 

not to recall the defendant’s sentence because the defendant 

poses an unreasonable risk of danger to public safety, that is the 

end of the court’s obligation to consider the Secretary’s request; 

the court does not consider resentencing the defendant. As the 

People put it, “regardless of whether the court might reduce 

[Boone’s] sentence to time-served or to something more than that 

but less than 105-years-to-life, the court would first have to 

determine that he did not pose an undue risk of dangerousness.” 

Similarly, the language of section 1172.1, subdivision (a)(2), 

which requires the resentencing court to apply any ameliorative 

legislation, confirms that the court considers whether to apply 

such legislation only after recalling the defendant’s sentence. 
12

Section 1172.1, subdivision (a)(2) states that, “in recalling and 

resentencing under this subdivision,” the court “shall apply the 

sentencing rules of the Judicial Council and apply any changes in 

law that reduce sentences or provide for judicial discretion so as 

to eliminate disparity of sentences and to promote uniformity of 

sentencing.” The qualifying phrase that precedes the 

requirement makes clear the requirement does not apply if the 

court does not recall the defendant’s sentence for resentencing.

(See People v. McMurray, supra, 76 Cal.App.5th at p. 1041 [“The 

legislative history [of former section 1170.03] . . . indicates that 

[the statute] was intended to clarify certain aspects of former 

section 1170(d)(1), . . . including that, ‘“when a sentence is 

recalled or reopened for any reason, in resentencing the 

defendant trial courts must apply ‘any changes in law that reduce 

sentences or provide for judicial discretion.’”’”].)

Boone argues that this interpretation of section 1172.1 

would thwart the “express goal of section 1172.1,” which “is to 

promote uniformity in sentencing,” and that, instead of “having a 

resentencing hearing where the disparity would hopefully be 

remedied, a defendant would instead have to show that he is not 

a risk to public safety if immediately released in order to be 

resentenced.” But section 1172.1, subdivision (b)(2), requires the 

court to assess whether the defendant poses a danger to the 

public “currently,” not in five years, 60 years (the total of Boone’s 

12 enhancements under section 667, subdivision (a)), 45 years 

(105 – 60), or 135 years (195 – 60). The superior court found 

there was an unreasonable risk of danger to public safety if, in 

Boone’s words, the court “immediately released” him. Once the 

court made that determination, its finding of current danger 

overcame the presumption in favor of recall and resentencing, 
13

and the court properly denied the Secretary’s request. Nothing in 

the language of section 1172.1, subdivision (b)(2), refers to 

correcting disparities in sentencing. (Cf. Dix v. Superior Court, 

supra, 53 Cal.3d at p. 456 [“The statutory language [of former 

section 1170, subdivision (d)] does not link recall with disparity 

at all, and declares only that any resentence ultimately imposed 

shall apply the Judicial Council’s sentencing criteria so as to 

minimize disparity.”].) 

 

DISPOSITION

The order denying the Secretary’s request to recall Boone’s 

sentence and resentence him is affirmed.

SEGAL, Acting P. J. 

We concur: 

FEUER, J. MARTINEZ, J.