Filed 7/25/22 P. v. Cortes CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS CORTES,

Defendant and Appellant.

 B313094

 (Los Angeles County

 Super. Ct. No. VA130706)

APPEAL from an order of the Superior Court of Los 

Angeles County. Laura F. Priver, Judge. Reversed and 

remanded with directions.

Tanya Dellaca, 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, Michael R. Johnsen and Blythe J. Leszkay, for 

Plaintiff and Respondent.

* * * * * * * * * *
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In July 2014, pursuant to a negotiated plea agreement, 

defendant and appellant Jose Luis Cortes pled no contest to 

carjacking (Pen. Code, § 215, subd. (a)) and second degree robbery 

(§ 211). Defendant admitted an allegation of personal gun use as 

to both counts (§ 12022.53) and further admitted having suffered 

a prior conviction for a serious or violent felony within the 

meaning of the “Three Strikes” law and section 667, 

subdivision (a)(1). 

The parties stipulated to a factual basis for the plea and 

the court accepted defendant’s plea and waivers on the record, 

finding them to have been knowingly, intelligently and 

voluntarily made. The remaining counts and special allegations 

were dismissed pursuant to Penal Code section 1385. 

In accordance with the plea agreement, the court sentenced 

defendant to state prison for 23 years, calculated as follows: the 

low term of three years on the carjacking count, doubled due to 

the prior strike, plus a consecutive 10-year term for the gun use 

enhancement and a consecutive five-year term pursuant to Penal 

Code section 667, subdivision (a)(1); and on the robbery count, a 

consecutive one-year term (one-third the midterm), doubled due 

to the strike prior. The court imposed and stayed a 10-year term 

for the gun use enhancement as to the robbery count.

In October 2020, pursuant to Penal Code former 

section 1170, subdivision (d)(1), the Secretary of the California 

Department of Corrections and Rehabilitation (CDCR) sent a 

letter to the superior court recommending that defendant’s 

sentence be recalled and that he be resentenced in light of the 

amendments to section 12022.53 that were enacted after

defendant’s original sentencing. The evaluation report attached 

to the Secretary’s letter indicated that defendant had been
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participating in various educational and self-help opportunities 

in prison, was subject to a potential deportation hold, received 

regular visitation and had “strong family support.” 

On November 6, 2020, the court sent a letter to the CDCR, 

rejecting the Secretary’s recommendation for a recall of sentence. 

The court’s letter erroneously stated defendant had been 

convicted by a jury of multiple robberies and his conviction had 

been affirmed on appeal. The court also indicated it believed the 

original sentence was appropriate given the nature of defendant’s 

crimes. 

Defendant made a request for reconsideration. The 

Alternate Public Defender’s Office submitted a letter on 

defendant’s behalf, supplementing the materials originally 

submitted by the Secretary. The materials stated defendant had 

“earned a favorable security designation” based on good behavior

and was moved to Level 1, participated in fire camp training and 

was prequalified to join a fire camp assignment, obtained a high 

school diploma and computer literacy certificate and was taking 

college courses toward completion of a bachelor’s degree. 

On May 5, 2021, the court issued its written ruling denying 

defendant’s request for a recall of sentence. The court 

acknowledged defendant’s efforts to take advantage of 

educational and vocational opportunities while incarcerated, but 

again stated its belief the original sentence was appropriate, that 

defendant had agreed to the disposition during the plea 

negotiations and the People were entitled to the benefit of that 

agreement

This appeal followed. 

While this appeal was pending, the Legislature passed 

Assembly Bill 1540 (2021–2022 Reg. Sess.) which, among other 
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things, moved the recall provisions of Penal Code former 

section 1170, subdivision (d) to the newly enacted section 1170.03 

and clarified the procedural requirements to be followed when 

requests for recall are made. (Stats. 2021, ch. 719, § 3.1.) The 

provisions became effective January 1, 2022. On June 30, 2022, 

the Legislature passed Assembly Bill 200 (2021–2022 Reg. Sess.) 

which, among other things, renumbered section 1170.03 as 

section 1172.1, with no change in the text. (Stats. 2022, ch. 58, 

§ 9.) 

Respondent concedes that remand for reconsideration of 

the recall recommendation is appropriate. We agree.

Penal Code section 1172.1, subdivision (a)(1) maintains the 

language of former section 1170, subdivision (d) that when a 

defendant, as here, has been committed to the custody of the 

CDCR, the court may “at any time,” upon the recommendation of 

the Secretary, recall the sentence and resentence the defendant.

(People v. McMurray (2022) 76 Cal.App.5th 1035, 1040; People v. 

Cepeda (2021) 70 Cal.App.5th 456, 464.)

Newly enacted Penal Code section 1172.1, subdivision (b)(2)

provides that where, as here, a resentencing recommendation is 

made by the Secretary of the CDCR, the defendant is entitled to 

notice and the appointment of counsel, and “[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.” 

Moreover, under the new statutory language, in 

considering a recall recommendation, the court “shall apply any 

changes in law that reduce sentences or provide for judicial 

discretion” (Pen. Code, § 1172.1, subd. (a)(2)), may consider 
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postconviction factors (id., subd. (a)(4)) and “regardless of 

whether the original sentence was imposed after a trial or plea 

agreement” the court may “[r]educe a defendant’s term of 

imprisonment by modifying the sentence” (id., subd. (a)(3)).

Finally, the “court shall state on the record the reasons for 

its decision to grant or deny recall and resentencing.” (Pen. Code, 

§ 1172.1, subd. (a)(6).)

DISPOSITION 

The order denying the request for recall of sentence is 

reversed and the case remanded to the superior court with 

directions to conduct further proceedings in accordance with this 

opinion and Penal Code section 1172.1. 

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J. 

HARUTUNIAN, J.*

* 

 Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.