Filed 11/14/22 P. v. Venegas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

 Plaintiff and Respondent,

v.

CARLOS ANTONIO 

VENEGAS,

 Defendant and Appellant.

2d Crim. No. B317662

(Super. Ct. No. BA441768)

(Los Angeles County)

Carlos Antonio Venegas appeals from an order denying a 

recommendation by the Secretary of the California Department of 

Corrections and Rehabilitation (CDCR) to recall his 2016 

sentence and resentence him pursuant to Penal Code section 

1170, former subdivision (d)(1).1 The People concede that the 

order “should be reversed and the matter should be remanded for 

a new hearing under section 1172.1” We accept the concession 

and reverse.

1 All statutory references are to the Penal Code.
2

Appellant’s Sentence

In January 2016 appellant pleaded guilty to second degree 

robbery. (§§ 211, 212.5, subd. (c).) He admitted one prior serious 

felony conviction within the meaning of section 667, subdivision

(a)(1), and two prior strikes within the meaning of California’s 

“Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-

(d).) The court dismissed one of the strikes. It sentenced 

appellant to prison for three years for second degree robbery,

doubled to six years because of the prior strike, plus five years for 

the prior serious felony conviction. Appellant’s aggregate 

sentence was 11 years. 

CDCR Secretary’s Recommendation Letter

The CDCR Secretary’s recommendation letter concerned 

the trial court’s imposition of the five-year enhancement 

pursuant to section 667, subdivision (a)(1). The Secretary stated: 

“Courts were previously barred from striking prior serious felony 

convictions for purposes of enhancement . . . . However, effective 

January 1, 2019, courts are now authorized to exercise their 

discretion to strike prior serious felony convictions for purposes of 

enhancement . . . , or to strike the punishment for the 

enhancement . . . , pursuant to PC section 1385. [¶] In Iight of 

the court’s newfound authority to not impose a consecutive 

enhancement pursuant to PC section 667, subdivision (a)(1) . . . , 

and after personally reviewing [appellant’s] commitment offense 

and in-prison conduct, I recommend that [appellant’s] sentence 

be recalled and that he be resentenced in accordance with PC 

section 1170, subdivision (d)(1).” 

The Secretary’s recommendation letter was filed in the 

superior court in September 2021. At that time section 1170, 

former subdivision (d)(1) provided that, after a defendant has 
3

been sentenced to prison, “the court may . . . at any time upon the 

recommendation of the secretary [of CDCR] . . . recall the 

sentence and commitment previously ordered and resentence the 

defendant in the same manner as if he or she had not previously 

been sentenced, provided the new sentence, if any, is no greater 

than the initial sentence.” “The CDCR recommendation 

furnishe[d] the court with jurisdiction it would not otherwise 

have to recall and resentence and is ‘an invitation to the court to 

exercise its equitable jurisdiction.’” (People v. McMurray (2022) 

76 Cal.App.5th 1035, 1040 (McMurray).)

Trial Court’s Refusal to Recall the Sentence

In refusing to recall appellant’s sentence, the trial court 

reasoned: “Given [appellant’s] criminal history and the benefit 

that he did receive from the court’s indicated [sentence agreeing 

to dismiss one of the two prior strikes] and the random nature of 

the assault and robbery in the underlying case, I do not find that 

it would be appropriate . . . to strike the 667(a) allegation or to 

reduce [appellant’s] sentence in any other way.”

Amendment of Section 1170, Former Subdivision (d)(1)

and Addition of New Section 1172.1

“Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 

2021, ch. 719, §§ 1-7) (Assembly Bill 1540) came into effect on 

January 1, 2022, and moved the recall and resentencing 

provisions of former section 1170(d)(1) to new section 1170.03.” 

(McMurray, supra, 76 Cal.App.5th at p. 1038.) Effective June 30, 

2022, section 1170.03 was renumbered as section 1172.1 with no 

change in text. (Stats. 2022, ch. 58, § 10.) 

“Assembly Bill 1540 . . . clarifies the required procedures 

including that, when recalling and resentencing, the court 
4

‘shall . . . apply any changes in law that reduce sentences or 

provide for judicial discretion.’ (§ 117[2.1], subd. (a)(2).) Where, 

as here, the CDCR recommends recall and resentencing, . . . there 

is now a presumption in favor of 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].’ (§ 117[2.1], subd. 

(b)(2).)” (McMurray, supra, 76 Cal.App.5th at p. 1040.) 

Section 1172.1, subdivision (a)(4) provides in part: “In 

recalling and resentencing pursuant to this provision, 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 diminished 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.” 

People’s Concession

Appellant maintains that pursuant to In re Estrada (1965) 

63 Cal.2d 740, section 1172.1 applies retroactively to his case. 

The People do not mention Estrada in their brief. In conceding 

that the matter should be remanded for a new hearing under 

section 1172.1, the People reason: “[C]onsiderations of judicial 

efficiency counsel in favor of applying the section 1172.1 

procedures in this case. For example, if this Court were to 

determine there was error requiring remand under former 

section 1170, subdivision (d)(1), or if the CDCR simply reinitiated 

its recall recommendation under the new law, then section 1172.1 

would apply. Because it is likely that the CDCR’s 
5

recommendation will eventually be considered under section 

1172.1, there is little point in declining to apply it now or 

litigating claims of error under former section 1170, subdivision 

(d)(1).” 

The People note: “Of course, the recall-and-resentencing 

decision remains an equitable and discretionary one. The trial 

court will not be obligated to recall appellant’s sentence even 

under the new statute, and it may consider evidence of 

appellant’s dangerousness in weighing the public safety issue. It 

will, however, be required to apply the new presumption in favor 

of recall and hold a hearing where the parties may make a record. 

(§ 1172.1, subds. (a)(8), (b)(2).)” 

Conclusion

“Under the circumstances, the appropriate remedy is to 

reverse and remand the matter, so that the trial court can 

consider the CDCR's recommendation to recall and resentence 

defendant under the new and clarified procedure and guidelines 

of section 117[2.1].” (McMurray, supra, 76 Cal.App.5th at p. 

1041.) We express no opinion whether appellant’s sentence 

should be recalled or, if it is recalled, whether he should be 

resentenced.

Disposition

The order denying the CDCR Secretary’s recommendation 

to recall appellant’s 2016 sentence and to resentence him is 

reversed. The matter is remanded to the trial court for 

reconsideration of the recommendation in light of new section 

1172.1.
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NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

BALTODANO, J.
Ray G. Jurado, Judge

Superior Court County of Los Angeles

______________________________

Law Office of Brad Poore and Brad J. Poore, 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, David E. Madeo, Acting Supervising 

Deputy Attorney General, William H. Shin, Deputy Attorney 

General, for Plaintiff and Respondent.