Filed 12/21/23 P. v. Lugo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL ARTURO LUGO,

Defendant and Appellant.

B325491

Los Angeles County

Super. Ct. No. TA102418

APPEAL from an order of the Superior Court of 

Los Angeles County, Tammy Chung Ryu, Judge. Reversed and 

remanded with directions.

Gloria C. Cohen, 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, Assistant 

Attorney General, Noah P. Hill and Steven E. Mercer, Deputy 

Attorneys General, for Plaintiff and Respondent.

_______________________________________
2

INTRODUCTION

Over 20 years ago, a jury convicted defendant Angel Arturo 

Lugo of first degree murder and found he used a knife to commit 

the offense. The court sentenced Lugo to 26 years to life in prison. 

In early 2021, the Secretary of the California Department 

of Corrections and Rehabilitation (Secretary) recommended the 

trial court recall Lugo’s sentence and resentence him under 

former Penal Code1 section 1170, subdivision (d) (now section 

1172.1), citing Lugo’s record of good behavior in prison. In June 

2022, before the court ruled on the Secretary’s recommendation, 

the Secretary rescinded it, stating she no longer supported 

recalling Lugo’s sentence based on her review of “subsequent 

information in his file.” The court then terminated Lugo’s recall 

proceedings, finding it lacked jurisdiction to recall his sentence

once the Secretary rescinded her recommendation.

On appeal, Lugo contends the court erred in refusing to 

rule on the merits of the Secretary’s recall recommendation. The 

People argue the Secretary’s withdrawal of her recommendation

extinguished the court’s sentencing jurisdiction, and Lugo’s

appeal should be dismissed for lack of an appealable order. As we 

explain, the Secretary’s decision to rescind her recall 

recommendation did not, by itself, extinguish the court’s 

sentencing jurisdiction. Rather, the court retained its sentencing 

jurisdiction and had discretion to act on the Secretary’s 

recommendation—either by ruling on its merits or dismissing the 

recall proceedings without prejudice. Because the court was 

unaware it possessed such discretion, we remand the matter for 

reconsideration of the Secretary’s recommendation to recall 

Lugo’s sentence under section 1172.1. 

1 All undesignated statutory references are to the Penal Code.
3

BACKGROUND

In October 2000, a jury convicted Lugo of one count of first 

degree murder (§ 187, subd. (a)). The jury also found Lugo 

personally used a deadly and dangerous weapon, a knife, while 

committing the murder (§ 12022, subd. (b)(1)). The court 

sentenced Lugo to a total term of 26 years to life in prison, 

consisting of a term of 25 years to life for the murder plus a 

consecutive one-year term for the weapon enhancement.

In April 2021, the Secretary submitted a letter

recommending the court recall Lugo’s sentence and resentence 

him pursuant to former section 1170, subdivision (d). The 

Secretary cited Lugo’s good behavior and participation in several 

vocational and rehabilitative programs while in prison.

In December 2021, the court appointed counsel to 

represent Lugo. In February 2022, defense counsel filed a motion 

in support of resentencing. Later that month, the court scheduled 

a hearing on the Secretary’s recall recommendation for April 

2022, which was continued several times.

In late June 2022, the Secretary rescinded her 

recommendation. According to the Secretary, she had “since 

reviewed subsequent information in [Lugo’s] file and based upon 

[that] information, [she] no longer support[ed] the prior 

recommendation for a sentencing recall.”

In November 2022, Lugo filed a supplemental motion 

asking the court to proceed with his recall proceedings, arguing 

the court retained discretion to do so even after the Secretary 

rescinded her recommendation. 

Following a hearing in mid-November 2022, the court 

denied Lugo’s motion. The court explained that once the 

Secretary withdrew her recommendation, the court “lost 

jurisdiction to consider resentencing Mr. Lugo in this matter.

And unless the court gets something else from [the Secretary] or 
4

the District Attorney’s office, there’s no statutory basis for the 

court to resentence Mr. Lugo.” The court then terminated Lugo’s 

recall proceedings.

Lugo appeals.

DISCUSSION

1. Applicable Law and Standard of Review

Under section 1172.1, subdivision (a)(1), the 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 greater than the 

initial sentence.” (§ 1172.1, subd. (a)(1).)

When recalling a defendant’s sentence and resentencing 

him under section 1172.1, the court “shall ... apply any changes 

in law that reduce sentences or provide for judicial discretion.” (§ 

1172.1, subd. (a)(2).) The court may not grant or deny recall and 

resentencing without “stat[ing] on the record the reasons for its 

decision,” nor may it deny recall and resentencing “without a 

hearing where the parties have an opportunity to address the 

basis for the intended denial or rejection.” (Id., subd. (a)(6), (8).) 

And where, as here, the Secretary or another correctional 

institution or prosecutorial agency recommends recall and 

resentencing, the court must appoint counsel to represent the 

defendant and “provide notice to the defendant and set a status 

conference within 30 days after the date that the court received 

the request.” (Id., subd. (b)(1).) In addition, the court must also 

apply 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).)
5

If the court decides to recall the defendant’s sentence, it 

may: (1) “[r]educe a defendant’s term of imprisonment by 

modifying the sentence”; or (2) if the defendant and the 

prosecutor’s office that originally tried the defendant agree, 

“[v]acate the defendant’s conviction and impose judgment on any 

necessarily included offense or lesser related offense, whether or 

not that offense was charged in the original pleading, and then 

resentence the defendant to a reduced term of imprisonment.” (§ 

1172.1, subd. (a)(3).)

Section 1172.1’s recall and resentencing procedures provide 

“ ‘an exception to the common law rule that the [trial] court loses 

resentencing jurisdiction once execution of sentence has begun.’ ” 

(People v. E.M. (2022) 85 Cal.App.5th 1075, 1082 (E.M.), quoting 

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

recommendation functions as an invitation to the court to 

exercise its equitable jurisdiction, which “furnishes the court with 

the jurisdiction it would not otherwise have to recall and 

resentence.” (People v. McMurray (2022) 76 Cal.App.5th 1035, 

1040 (McMurray).)2

2 Section 1172.1’s recall and resentencing procedures were originally 

found in former section 1170, subdivision (d), which was in effect at the 

time the Secretary filed her recall recommendation. (People v. Vaesau

(2023) 94 Cal.App.5th 132, 144 (Vaesau).) By the time the Secretary 

withdrew her recommendation, the Legislature had moved those 

procedures to section 1170.03. (Vaesau, at p. 144.) In enacting section 

1170.03, the Legislature added several provisions that clarify the 

procedures and presumptions applicable to proceedings that arise out 

of a Secretary’s recommendation to recall a defendant’s sentence, such 

as the requirement that the court appoint counsel to represent the 

defendant and the presumption favoring recall and resentencing of the 

defendant. (McMurray, supra, 76 Cal.App.5th at p. 1040; see also 

former § 1170.03.) Before the court terminated Lugo’s recall 
6

We review a court’s denial of recall and resentencing for 

abuse of discretion. (E.M., supra, 85 Cal.App.5th at pp. 1082–

1083.) We independently review issues of statutory 

interpretation. (Ibid.)

2. The Secretary’s decision to withdraw her recall 

recommendation did not extinguish the court’s 

sentencing jurisdiction. 

Lugo argues the court erred in terminating his recall 

proceedings after the Secretary withdrew her recommendation to 

recall his sentence. Specifically, Lugo contends the court 

erroneously believed the Secretary’s decision to withdraw her 

recommendation extinguished the court’s sentencing jurisdiction. 

Since the court did not realize it retained discretion to recall his 

sentence and resentence him under section 1172.1, Lugo argues, 

the matter must be remanded to allow the court to exercise that 

discretion. 

The People, on the other hand, argue we should dismiss 

Lugo’s appeal for lack of an appealable order because the court 

did not rule on the Secretary’s recommendation to recall Lugo’s 

sentence after the Secretary rescinded that recommendation. 

Alternatively, the People argue, the court lacked jurisdiction to 

proceedings, section 1170.03 was recodified as section 1172.1, without 

any substantive changes. (Stats. 2022, ch. 58, § 9; Vaesau, at p. 142.) 

Lugo contends, and the People don’t dispute, that section 1172.1 

applies to this case since it was in effect at the time the court declined 

to recall Lugo’s sentence. We agree. (See McMurray, supra, 76 

Cal.App.5th at pp. 1039–1042 [because the Legislature enacted former 

section 1170.03 to clarify its intent regarding former section 1170, 

subdivision (d)(1), defendant was entitled to have the court consider 

the Secretary’s recall recommendation, which was filed while former 

section 1170, subdivision (d) was still in effect, under the procedures 

set forth in section 1170.03].)
7

recall Lugo’s sentence once the Secretary rescinded her 

recommendation, so to the extent the court issued any “ruling” or 

“order” under section 1172.1, it is not appealable. 

Two recent opinions—E.M. and Vaesau—both issued after 

the court in this case concluded it lacked jurisdiction, have 

addressed questions similar to those raised in this appeal and 

held the decision of an executive branch actor, such as the 

Secretary or a prosecutor, to withdraw a recall recommendation 

does not, by itself, extinguish the trial court’s sentencing 

jurisdiction under section 1172.1. Considering these cases, we

conclude the court was not required to terminate Lugo’s recall 

proceedings as a matter of course once the Secretary withdrew 

her support for recalling Lugo’s sentence. Because the court did 

not realize it had discretion to either terminate the proceedings 

without prejudice or reach the merits of the Secretary’s recall 

recommendation, we remand the matter for the court to exercise 

that discretion in the first instance.

2.1. E.M.

In E.M., the Secretary recommended the trial court recall 

the defendant’s sentence and resentence him under former 

section 1170, subdivision (d) in light of “a recent legislative 

change to section 1385 that granted trial courts the discretion to 

dismiss a prior serious felony enhancement in furtherance of 

justice.” (E.M., supra, 85 Cal.App.5th at p. 1080.) The court 

declined to recall the defendant’s sentence because it believed the 

ameliorative legislation did not apply to sentences that were 

final, like the defendant’s sentence. (Id. at pp. 1082, 1090.) The 

defendant appealed, and the People initially agreed that the 

matter should be remanded because the court erroneously 

believed it lacked discretion to dismiss the defendant’s prior 

serious felony enhancements. (Id. at p. 1081.) While the appeal

was pending, and after the parties had fully briefed the merits, 
8

the Secretary withdrew her recommendation to recall the 

defendant’s sentence. (Ibid.) In supplemental briefing, the People 

argued the defendant’s appeal should be dismissed as moot 

considering the Secretary’s decision to rescind her recall 

recommendation. (Id. at p. 1082.)

The Sixth District disagreed, holding the Secretary’s 

rescission of her recall recommendation at such a late stage in 

the proceedings did “not eliminate the trial court’s jurisdiction to 

recall and resentence.” (E.M., supra, 85 Cal.App.5th at p. 1087.)

The defendant’s appeal, therefore, was not moot. (Ibid.)

The appellate court began its analysis with a discussion of 

section 1172.1’s language. (E.M., supra, 85 Cal.App.5th at p. 

1083.) First, the court found nothing in the statute’s language

“clearly gives the Secretary the power to rescind her 

recommendation” to recall a defendant’s sentence. (Ibid.) To the 

contrary, section 1172.1, subdivision (a)(1)’s use of the phrase 

“ ‘at any time upon the recommendation’ implies the trial court’s 

power to recall continues indefinitely once it receives a 

recommendation from the Secretary.” (Ibid.) After reviewing

section 1172.1’s legislative history, the court found it did not 

address whether the Secretary has the authority to rescind her 

recall recommendation and unilaterally extinguish the court’s

jurisdiction to recall a defendant’s sentence. (Id. at pp. 1083–

1084.) 

The court then distinguished In re Fain (1976) 65 

Cal.App.3d 376 (Fain) and rejected the People’s argument that 

the Secretary possesses an inherent power to rescind a recall 

recommendation after the trial court has ruled on it. (E.M., 

supra, 85 Cal.App.5th at p. 1084.) Although the Secretary may

rescind decisions that are “ ‘purely administrative in nature,’ ” 

such as the Adult Authority’s decision to grant parole and fix a 

release date at issue in Fain, a recall recommendation is not a
9

purely administrative function. (Ibid.) Rather, it implicates a 

court’s power to recall and resentence, which “is primarily a 

judicial function.” (Ibid.) Indeed, the court noted, “ ‘[b]y enacting 

[former] section 1170(d), the Legislature intended to retain, 

within the limits of determinate sentencing, the preexisting 

judicial power to recall and reconsider a sentence on individual 

grounds.’ ” (Ibid.) According to the court, “it is unlikely the 

Legislature intended for [the Secretary’s powers] to intrude this 

far into the courts’ jurisdiction over sentencing matters.” (Id. at p. 

1085.) 

The court also rejected the People’s claims that public 

policy and the separation-of-powers doctrine justified permitting 

the Secretary to rescind her recall recommendation at such a late 

stage in the proceedings. (E.M., supra, 85 Cal.App.5th at pp. 

1085–1086.) To the contrary, the court noted, any separation of 

powers concerns weighed against allowing the Secretary to 

rescind her recommendation after the trial court had already 

ruled on it, the parties had fully briefed the merits of the 

defendant’s appeal, and the appellate court was prepared to 

grant the defendant his requested relief. (Id. at p. 1086.) To hold 

otherwise would permit the Secretary to unilaterally 

“ ‘undermine the authority and independence’ of [the] court.” (Id. 

at p. 1087.) Nevertheless, the court noted, on remand nothing

would prohibit the trial court from giving weight to the 

Secretary’s most recent recommendation—i.e., her letter stating 

she no longer supported recalling the defendant’s sentence—as a

factor in the court’s analysis under section 1172.1. (E.M., at p. 

1087.)

The court in E.M. declined to decide, however, if the 

Secretary may rescind a recall recommendation at an earlier 

stage in the proceedings, such as “where the trial court has not 

yet acted on it; where a subsequent change in the prisoner’s 
10

circumstances may support rescission; or where the initial 

recommendation was erroneously issued due to administrative 

improvidence.” (E.M., supra, 85 Cal.App.5th at pp. 1085–1086.)

2.2. Vaesau

In Vaesau, which was decided after E.M., Division One of 

the First District addressed whether a district attorney could

withdraw a recall recommendation issued under section 1172.1

before the trial court acted on it. (Vaesau, supra, 94 Cal.App.5th 

at p. 138.) There, the district attorney moved the court to recall 

the defendant’s sentence. (Id. at p. 140.) The district attorney’s 

request “did not address why the district attorney recommended 

resentencing or include any supporting documentation.” (Id. at p. 

151.) Shortly thereafter, a new district attorney was appointed, 

who moved to withdraw her predecessor’s recall recommendation

without citing any reason for the proposed withdrawal. (Id. at pp. 

140–141.) The trial court granted the withdrawal motion and 

terminated the section 1172.1 recall proceedings. (Vaesau, at p. 

141.)

On appeal, the defendant argued the district attorney 

lacked the authority to rescind the recall recommendation and 

the trial court violated section 1172.1 and his due process rights 

by failing to reach the merits of whether to recall his sentence. 

(Vaesau, supra, 94 Cal.App.5th at p. 139.) The People argued the 

district attorney had the inherent power to rescind the recall 

recommendation and divest the court of its sentencing 

jurisdiction under section 1172.1. (Vaesau, at pp. 143–145.) Since 

the court lacked jurisdiction to recall the defendant’s sentence 

once it granted the district attorney’s withdrawal motion, the 

People contended there was no appealable order that the 

defendant could challenge. (Id. at p. 143.) The appellate court 

found the “correct answer lies between these two extremes.” (Id.

at p. 145.)
11

The court held a district attorney does not possess the 

inherent power to unilaterally terminate proceedings under 

section 1172.1 by withdrawing a recall recommendation before 

the court rules on its merits. (Vaesau, supra, 94 Cal.App.5th at 

pp. 145–146.) Distinguishing Fain, the court explained that 

unlike a decision to grant parole, which is a “ ‘ “purely 

administrative” ’ ” action, a decision to recommend recall and 

resentencing implicates not just the powers of an executive 

branch actor—such as a district attorney or the Secretary—but 

also the sentencing powers of the court. (Id. at p. 147.) Since a 

recall recommendation under section 1172.1 “functions to renew 

the trial court’s sentencing jurisdiction,” the court observed, 

“permitting the executive branch to unilaterally terminate 

section 1172.1 proceedings would ‘intrude’ into that jurisdiction, 

raising separation-of-powers concerns.” (Vaesau, at p. 147.)

Nevertheless, the court concluded, trial courts are not 

required to reach the merits of every recall recommendation. 

(Vaesau, supra, 94 Cal.App.5th at p. 148.) Rather, courts have 

discretion to allow a recommendation to be withdrawn when the 

recommending agency “identifies a legitimate basis for 

withdrawing the [recommendation] and moves to withdraw 

before the court rules on the merits.” (Id. at p. 139; see also id. at 

pp. 151–153.) The court observed that although section 1172.1 

does not establish a procedure for terminating recall proceedings 

without prejudice, courts “ ‘possess a constitutionally conferred, 

inherent authority “to create new forms of procedure” in the gaps 

left unaddressed by statutes and the rules of court.’ ” (Vaesau, at 

p. 150.) Using that authority to terminate section 1172.1 

proceedings without prejudice upon a showing of good cause to 

rescind a recall recommendation comports with the Legislature’s 

intent that courts give weight to an agency’s “most up-to-date 

assessment” of a prisoner’s fitness for resentencing. (Vaesau, at p. 
12

149.) The court also noted that “if resentencing requests were 

‘irrevocable,’ it could discourage district attorneys and others 

from making such requests in the first place, which would thwart 

section 1172.1’s overall purpose of reducing incarceration levels.” 

(Id. at pp. 149–150.)

Addressing the scope of a trial court’s discretion to permit 

withdrawal of a recall recommendation, the court explained that 

such discretion must be “guided by section 1172.1’s objectives.” 

(Vaesau, supra, 94 Cal.App.5th at p. 151.) While there “could be a 

range of valid reasons to withdraw a [recall recommendation], 

such as ‘administrative mistake or improvidence,’ a change in the 

law, or a ‘change in the prisoner’s circumstances’ making the 

prisoner ‘less deserving of resentencing,’ ” a trial court thwarts 

the intent behind section 1172.1’s presumption in favor of 

resentencing when it does not consider the basis for a withdrawal 

request before terminating recall proceedings. (Vaesau, at p. 152.) 

The court also found that “[d]ue process concerns ... 

support requiring a district attorney to offer a valid reason for 

deciding to withdraw a resentencing request.” (Vaesau, supra, 94 

Cal.App.5th at p. 152.) Specifically, the court explained, allowing 

an agency “to withdraw a resentencing request without 

explanation, especially under the political circumstances [at issue 

there], raises the specter of arbitrary action and does not carry 

the appearance of fairness.” (Ibid.) Because the district attorney 

did not provide an explanation for her decision to withdraw her 

predecessor’s recall recommendation, the appellate court 

remanded the matter for the trial court to reconsider whether to 

allow the district attorney to withdraw the recommendation. (Id. 

at pp. 152–153.)
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2.3. Conclusion

We conclude the Secretary’s decision to rescind her 

recommendation to recall Lugo’s sentence before the court ruled 

on it did not, without more, extinguish the court’s sentencing

jurisdiction. Once the Secretary issued her recommendation, the 

court had jurisdiction to recall Lugo’s sentence and resentence 

him under section 1172.1. (McMurray, supra, 76 Cal.App.5th at 

p. 1040.) Nothing in that statute, however, states the Secretary 

may unilaterally extinguish the court’s jurisdiction by rescinding

her recall recommendation. (See generally § 1172.1; see also 

E.M., supra, 85 Cal.App.5th at p. 1083.) And, as the courts in 

E.M. and Vaesau explained, granting the Secretary such 

authority would raise separation of powers concerns. (See E.M., 

at p. 1086 [allowing Secretary to unilaterally moot court 

proceedings would “ ‘undermine the authority and 

independence’ ” of the court]; Vaesau, at p. 147 [permitting 

executive branch to unilaterally terminate section 1172.1 

proceedings would “ ‘intrude’ ” into court’s sentencing 

jurisdiction].) 

Certainly, a court is not required to rule on the merits of 

every recall recommendation it receives. Nothing in section 

1172.1 prohibits a court from terminating recall proceedings 

without prejudice after the Secretary withdraws her 

recommendation. (See generally § 1172.1; see also Vaesau, supra, 

94 Cal.App.5th at pp. 150–151.) Indeed, precluding a court from 

allowing a recall recommendation to be withdrawn would 

undermine “section 1172.1’s overall purpose of reducing 

incarceration levels,” because it could discourage the Secretary 

and other agencies from asking a court to recall a defendant’s 

sentence. (Vaesau, at pp. 149–150.) 

In short, the Secretary’s decision here to rescind her 

recommendation did not extinguish the court’s sentencing 
14

jurisdiction as a matter of course. And where, as here, the record 

shows the court acted on the assumption it lacked discretion to 

exercise its sentencing jurisdiction, remand is necessary so that 

the trial court may have the opportunity to exercise that 

discretion in the first instance. (People v. Gutierrez (2014) 58 

Cal.4th 1354, 1391 [“ ‘Defendants are entitled to sentencing 

decisions made in the exercise of the “informed discretion” of the 

sentencing court.’ ”].)

DISPOSITION

The order terminating Lugo’s recall proceedings is vacated.

The matter is remanded for further proceedings consistent with 

the views expressed in this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.