1

Filed 8/4/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN VAESAU,

Defendant and Appellant.

 A165925

 (City and County of San 

 Francisco Super. Ct. No. 

 SCN 143984)

In 1992, a jury convicted defendant John Vaesau of three counts of 

attempted murder and other crimes committed when he was a minor. The 

trial court sentenced him to two consecutive life terms, plus 14 years. Thirty 

years later, San Francisco’s then-District Attorney, Chesa Boudin, filed a 

request to resentence Vaesau under former Penal Code1 section 1170.03, now 

section 1172.1. That statute authorizes a trial court, “at any time upon the 

recommendation of . . . the district attorney of the county in which the 

defendant was sentenced,” to recall the sentence and resentence a defendant

convicted of a felony. (§ 1172.1, subd. (a)(1).)

Within weeks of filing the resentencing request, Boudin was recalled,

and the new District Attorney, Brooke Jenkins, moved to withdraw the 

request without offering a substantive reason for doing so. After briefing and 

1 All further statutory references are to the Penal Code unless 

otherwise noted.
2

a hearing, the trial court granted the motion, thereby terminating the section 

1172.1 proceeding. The court emphasized it was not ruling on the merits of 

whether resentencing was appropriate. 

On appeal, Vaesau claims the district attorney lacked authority to 

rescind the resentencing request and the trial court violated section 1172.1 

and his due process rights by failing to reach the merits of resentencing. We

hold that a trial court has discretion, but is not required, to terminate a 

section 1172.1 proceeding when a district attorney identifies a legitimate 

basis for withdrawing the resentencing request and moves to withdraw 

before the court rules on the merits. Because the district attorney here did 

not offer any such reason, we vacate the order at issue and remand for 

reconsideration.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

The facts giving rise to Vaesau’s convictions are not relevant to the 

appeal. Based on events that occurred in March 1991, Vaesau was charged 

with three counts of attempted premeditated murder and three counts of 

assault with a firearm, all six of which were accompanied by allegations of 

personal use of a firearm and personal infliction of great bodily injury.2 

Based on a May 1991 incident, he was also charged with one count of assault 

2 These charges were brought under sections 187 and 664 (attempted 

murder) and section 245, subdivision (a)(2) (assault with firearm). The 

accompanying allegations were made under sections 12022.5, subdivision (a)

(firearm use), and 12022.7 (infliction of great bodily injury). 
3

with a deadly weapon, and based on a December 1990 incident, he was 

charged with a misdemeanor count of escape from a juvenile facility.3

Vaesau, who was 16 years old at the time of the crimes, was tried as an 

adult. The jury found him guilty of all the charges and enhancements, except 

for the great-bodily-injury enhancements alleged in connection with two of 

the attempted-murder counts. In December 1992, the trial court sentenced 

him to two terms of life with the possibility of parole and a determinate term 

of 14 years in prison. He appealed, and this division affirmed the judgment, 

except it remanded for resentencing based on the trial court’s failure to state 

its reasons for one of its sentencing choices. (People v. Vaesau (A060555, 

July 25, 1994) [nonpub. opn.].) On remand, the trial court imposed the same 

sentence.

On April 29, 2022, Boudin filed a “motion to resentence” Vaesau under 

former section 1170.03, “recommend[ing] that [the trial court] recall the 

sentence of life with possibility of parole.” The trial court appointed a public 

defender to represent Vaesau, and the matter was set for hearing on July 15. 

In June 2022, before the hearing took place, Boudin was recalled by 

San Francisco voters, and on July 8, Jenkins was sworn in as the new 

District Attorney.4 (Smith, Brooke Jenkins Sworn In As New DA After Recall 

of Chesa Boudin, Bay City News, Inc. (July 8, 2022) available online at 

<https://www.sfgate.com/news/bayarea/article/Brooke-Jenkins-Sworn-In-AsNew-Da-After-Recall-Of-17293648.php> [as of Aug. 4, 2023].) At the July 15 

3 These charges were brought under section 245, subdivision (a)(1)

(assault with deadly weapon), and Welfare and Institutions Code section 871 

(escape from juvenile facility). 

4 On our own motion, we take judicial notice of this election result and 

the date Jenkins took office. (Evid. Code, § 452, subd. (h); see Edelstein v. 

City and County of San Francisco (2002) 29 Cal.4th 164, 171, fn. 3 [taking 

judicial notice of election results].)
4

hearing, the appearing prosecutor sought to withdraw the request for 

resentencing, but she did not explain why.5 The trial court said its “natural 

inclination” was that the district attorney could withdraw the request, since 

the court had not yet ruled upon it. Nonetheless, the court set another 

hearing and allowed Vaesau to brief the issue. 

Vaesau submitted briefing in which he maintained that once the 

district attorney recommended resentencing, the trial court had jurisdiction 

and was required to follow section 1172.1’s procedures, including giving him 

a hearing on the merits of resentencing. He argued that failing to provide the 

hearing would violate both section 1172.1 and due process.

Vaesau also took the position that the district attorney was not

authorized to withdraw the recommendation, particularly without identifying 

“any rational basis” for doing so. He noted that “[t]he prosecution had ample 

reason to recommend release,” pointing to the same prosecutor’s arguments

in favor of release at his January 2022 parole hearing. (Boldface omitted.) A 

transcript of that hearing shows the prosecutor appeared and argued there 

were several mitigating factors supporting release, including Vaesau’s age 

and intoxication at the time of the crimes and his lack of family support. She 

also noted his personal evolution, remorse for the crimes, and lack of rule 

violations since 2016. 

At the next hearing on July 21, 2022, it was revealed that the District 

Attorney’s office had fired the prosecutor. The hearing was continued until 

August 11, at which time a new prosecutor appeared. That prosecutor 

reiterated the district attorney’s desire to withdraw the resentencing request. 

5 The hearing’s minute order states, “Due to recent changes in the law, 

the People move to withdraw the petition.” Although the trial court noted 

that the resentencing request involved “a new area of the law,” the prosecutor 

never identified any change in the law as a reason to withdraw the request.
5

She provided no substantive reason for the requested withdrawal, saying

only that having “reviewed just the papers,” she believed the request was 

“very thin on the record even to provide to the Court.” 

The trial court stated it was “convinced that [it was] within the ambit 

of [the district attorney’s] discretion to withdraw the petition” for

resentencing. Though acknowledging it was “a novel question,” the court was 

not persuaded by Vaesau’s position that “once you start the mechanism 

[under section 1172.1], you can’t stop it.” 

The trial court also distinguished another recent case in which it was 

involved. There, the District Attorney’s office sought resentencing, and the 

court recalled the sentence and transferred the matter to juvenile court to 

determine whether the defendant was fit for that court’s jurisdiction. The 

day before the recall election, the district attorney sought to withdraw the 

resentencing request, and the juvenile court refused to allow the district 

attorney to do so. Vaesau’s case, in contrast, was “at a much earlier stage” of 

the process, and the court decided it was appropriate to allow the district 

attorney to withdraw the request. The court emphasized that its ruling had 

“nothing to do with the merits of whether the sentence should or shouldn’t be 

recalled” and stated it had not “made any decision on that.” 

II.

DISCUSSION

A. Recall and Resentencing Under Section 1172.1

Section 1172.1 provides that “[w]hen a defendant, upon conviction of a 

felony offense, has been committed to the custody of the Secretary of the 

Department of Corrections and Rehabilitation or to the custody of the county 

correctional administrator pursuant to subdivision (h) of Section 1170, the 

[trial] court may, within 120 days of the date of commitment on its own 

motion, at any time upon the recommendation of the secretary or the Board 
6

of Parole Hearings in the case of a defendant incarcerated in state prison, the 

county correctional administrator in the case of a defendant incarcerated in 

county jail, the district attorney of the county in which the defendant was 

sentenced, or the Attorney General if the Department of Justice originally 

prosecuted the case, 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).)

A similar provision originally appeared in section 1170, former 

subdivision (d) (former section 1170(d)). “Former section 1170(d) provided ‘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 (Dix).) A request for resentencing under former 

section 1170(d) functioned as “ ‘ “an invitation to the [trial] court to exercise 

its equitable jurisdiction,” which “furnishe[d] the court with the jurisdiction it 

would not otherwise possess to recall or resentence.” ’ ”6 (E.M., at p. 1082.) 

On receiving such a request, the court “ ‘ha[d] broad discretion whether to 

recall the existing sentence and resentence the incarcerated individual,’ ” and 

if it chose to do so, it could perform a full resentencing, except that it could 

not impose a greater sentence than the original one. (Ibid.)

6 Former section 1170(d) originally authorized only the Secretary of the 

Department of Corrections and Rehabilitation (Secretary) or Board of Parole 

Hearings to request resentencing. District attorneys were added as potential 

recommending parties in 2019. (Assembly Bill No. 2942 (2017–2018 Reg. 

Sess.), Stats. 2018, ch. 1001, § 1.) 
7

Effective January 1, 2022, Assembly Bill No. 1540 (2021–2022 Reg. 

Sess.) (Assembly Bill No. 1540) “moved the recall and resentencing provisions 

of former section 1170(d)(1) to new section 1170.03.” (People v. McMurray

(2022) 76 Cal.App.5th 1035, 1038; Stats. 2021, ch. 719, § 3.) Section 1170.03 

was later recodified without substantive change as section 1172.1. (Stats. 

2022, ch. 58, § 9; People v. Braggs (2022) 85 Cal.App.5th 809, 818.) Assembly 

Bill No. 1540 “also clarified the Legislature’s intent regarding procedural 

requirements” and “added a presumption in favor of recall and resentencing” 

when a request for resentencing is submitted. (McMurray, at p. 1038.) 

Thus, section 1172.1 now requires a trial court to “state on the record 

the reasons for its decision to grant or deny recall and resentencing” and 

provides that “[r]esentencing shall not be denied . . . without a hearing 

where the parties have an opportunity to address the basis for the intended 

denial or rejection.” (§ 1172.1, subd. (a)(6), (8).) In addition, where, as here,

“a resentencing request pursuant to subdivision (a) is from the Secretary . . . , 

the Board of Parole Hearings, a county correctional administrator, a district 

attorney, or the Attorney General[7], all of the following shall apply: [¶]

(1) The court shall provide notice to the defendant and set a status conference 

within 30 days after the date that the court received the request. The court’s 

order setting the conference shall also appoint counsel to represent the 

defendant. [¶] (2) There shall be a presumption favoring recall and 

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

7 The five parties listed are the only parties that can recommend 

resentencing under section 1172.1, subdivision (a)(1). In other words, 

section 1172.1, subdivision (b), applies when proceedings under the statute 

are initiated by an outside recommendation, as opposed to when the trial 

court recalls the sentence on its own motion within 120 days of the 

commitment. 
8

the defendant is an unreasonable risk of danger to public safety, as defined in 

subdivision (c) of Section 1170.18.” (§ 1172.1, subd. (b).)

B. The Order Granting the Motion to Withdraw the Resentencing 

Request Is Appealable.

Initially, the Attorney General claims the order granting the district 

attorney’s motion to withdraw the resentencing request was not appealable 

because “in the absence of a resentencing petition, [the trial court] no longer 

had jurisdiction” to resentence Vaesau. We are not persuaded.

“The right to appeal is statutory only, and a party may not appeal a 

trial court’s judgment, order[,] or ruling unless such is expressly made 

appealable by statute.” (People v. Loper (2015) 60 Cal.4th 1155, 1159

(Loper).) Absent an appealable order, an appellate court lacks jurisdiction to 

consider an appeal. (People v. Montellano (2019) 39 Cal.App.5th 148, 153.) 

The question here is whether the appeal is permissible under section 1237, 

subdivision (b), which authorizes a criminal defendant to appeal “[f]rom any 

order made after judgment, affecting the substantial rights of the party.” We 

review this issue de novo. (Kirk v. Ratner (2022) 74 Cal.App.5th 1052, 1060.)

“ ‘A trial court order denying relief that the court has no jurisdiction to 

grant does not affect a defendant’s substantial rights and is therefore not 

appealable under section 1237, subdivision (b).’ ” (E.M., supra,

85 Cal.App.5th at p. 1085.) Relying on this principle, the Attorney General 

claims that once the trial court allowed the district attorney to withdraw the 

resentencing request, the court “had no further jurisdiction to . . . consider on 

the merits whether [Vaesau] should be resentenced,” and its order therefore

did not affect Vaesau’s substantial rights. Vaesau, on the other hand, claims 

the court “exercised its jurisdiction when it granted the . . . request to 

withdraw,” and its “ruling was in essence a denial of an authorized 

resentencing petition” that did affect his substantial rights. 
9

We take a somewhat different view than that of either party. To begin 

with, we agree with Vaesau that the trial court had jurisdiction to rule on the 

district attorney’s motion to withdraw the resentencing request. Upon 

receiving a request from a proper party, the court had jurisdiction to 

resentence him. (See E.M., supra, 85 Cal.App.5th at p. 1082; § 1172.1, 

subd. (a)(1).) Indeed, there is no dispute that, had the district attorney not 

withdrawn the resentencing request and the court had thereafter denied 

resentencing, that order would be appealable. (See E.M., at pp. 1084–1085 

[order denying request for resentencing was appealable even though 

Secretary subsequently withdrew request]; see also Loper, supra, 60 Cal.4th 

at p. 1158 [orders denying compassionate release under § 1170, former 

subd. (e), are appealable even though prisoners lack standing to request such 

relief themselves].) Thus, decisions cited by the Attorney General in which 

the trial court did not have jurisdiction to consider a defective request for 

resentencing are inapposite. (See, e.g., People v. Hernandez (2019) 

34 Cal.App.5th 323, 326 [defendant could not appeal from denial of his own 

request for resentencing under former § 1170(d) made after judgment was 

final]; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725 [same]; see also Loper, 

at pp. 1165–1166.)

Although the trial court had jurisdiction to rule on the district

attorney’s motion to withdraw the resentencing request, the question

remains whether granting the motion and thereby terminating the 

section 1172.1 proceeding affected Vaesau’s substantial rights. The answer is 

yes if the court had the ability to deny the motion and instead proceed with 

resentencing. As we explain in more detail below, the court had that ability. 

The order is therefore appealable. 
10

C. Trial Courts Have Discretion to Allow a District Attorney to 

Withdraw a Section 1172.1 Request Before Reaching the Merits of 

Whether Resentencing Is Warranted.

We now turn to the central issue on appeal, the effect of the district 

attorney’s withdrawal of the resentencing request. According to the Attorney 

General, the district attorney had the inherent power to rescind the request, 

at which point the trial court had to terminate the section 1172.1 proceeding. 

But according to Vaesau, the court was statutorily and constitutionally 

required to determine whether resentencing was appropriate even though the 

district attorney no longer supported resentencing. In other words, the 

Attorney General claims the court had no choice but to grant the withdrawal 

motion, and Vaesau claims the court had no choice but to deny it. The correct 

answer lies between these two extremes. 

“ ‘ “ ‘ “As in any case involving statutory interpretation, our 

fundamental task here is to determine the Legislature’s intent so as to 

effectuate the law’s purpose. [Citation.] We begin by examining the statute’s 

words, giving them a plain and commonsense meaning.” ’ ” ’ [Citation.] 

‘ “[W]e look to ‘the entire substance of the statute . . . in order to determine 

the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, 

we construe the words in question ‘ “in context, keeping in mind the nature 

and obvious purpose of the statute.” ’ ” ’ ” (People v. Lewis (2021) 11 Cal.5th 

952, 961.) “Where the statutory texts admits of more than one reasonable 

interpretation, we may also consider various extrinsic aids—including the 

legislative history—to the extent they are helpful in advancing the 

Legislature’s purpose.” (People v. Rodriguez (2016) 1 Cal.5th 676, 686.) If 

possible, we construe statutes “in a manner that avoids serious constitutional 

questions.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) Finally, “[w]e 

must . . . avoid a construction that would produce absurd consequences, 
11

which we presume the Legislature did not intend.” (People v. Mendoza (2000) 

23 Cal.4th 896, 908.) 

1. E.M.

We begin with E.M., in which the Sixth District Court of Appeal 

addressed the effect of the Secretary’s withdrawal of a resentencing request. 

(E.M., supra, 85 Cal.App.5th at p. 1083.) There, the Secretary originally 

recommended resentencing under former section 1170(d), “cit[ing] 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.,

at p. 1080.) The trial court declined to recall the sentence, based on the 

erroneous view that the ameliorative legislation did not apply to the 

defendant because his sentence was final. (Id. at pp. 1082, 1090.) While the 

defendant’s appeal from the order denying resentencing was pending, and 

after the parties briefed the merits, the Secretary rescinded the

recommendation. (Id. at p. 1083.) 

E.M. held that “the Secretary’s rescission . . . [did] not eliminate the 

trial court’s jurisdiction to recall and resentence [the defendant] under 

section 1172.1 at this stage in the proceedings,” meaning the appeal was not 

moot. (E.M., supra, 85 Cal.App.5th at p. 1087.) After noting that 

section 1172.1’s plain language did not address the Secretary’s power to 

rescind a recommendation, the Sixth District determined that “the language 

of the statute is amenable to more than one reasonable interpretation.” 

(E.M., at p. 1083.) But the court found nothing in the legislative history

shedding light on the issue, and it rejected the Attorney General’s arguments 

that the Secretary has the “inherent[]” power to rescind a resentencing 

recommendation or that “the trial court does not have jurisdiction until it 

actually recalls the sentence.” (Id. at pp. 1083–1084.) E.M. emphasized that
12

by 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.’ ” (E.M., at p. 1084, 

quoting Dix, supra, 53 Cal.3d at p. 458.) 

Finally, E.M. concluded that public policy and separation-of-powers 

concerns did not justify permitting the Secretary to withdraw the

resentencing request at such a late stage. (E.M., supra, 85 Cal.App.5th at 

pp. 1085–1086.) The Attorney General asserted that “it would lead to absurd 

consequences” if the Secretary could not withdraw “ ‘mistaken[]’ ” 

recommendations, but the rescission letter at issue “did not assert any 

administrative mistake or improvidence[,] . . . cite any change in the 

circumstances of [the defendant’s] incarceration[,] or offer any other objective 

explanation for why he would be less deserving of resentencing now.” (Id. at 

p. 1085.) Moreover, section 1172.1 “expressly gave trial courts jurisdiction to 

resentence prisoners,” and if anything, the separation of powers weighed 

against permitting the Secretary to withdraw the request after “the trial 

court had expressly ruled on it,” the merits were fully briefed on appeal, and 

the appellate court was prepared to grant relief to the defendant. (E.M., at 

pp. 1086–1087.) Although on remand the trial court could consider the 

rescission “as one factor in [its] analysis,” the Secretary could not unilaterally 

halt the proceedings under section 1172.1. (E.M., at p. 1087.)

E.M. left open the question of when, if ever, a resentencing request 

under section 1172.1 may be unilaterally withdrawn. The Sixth District 

expressly declined to “decide whether the Secretary has the power to rescind 

a recommendation soon after issuing it and where the trial court has not yet 

acted on it; where a subsequent change in the prisoner’s circumstances may 

support rescission; or where the initial recommendation was erroneously 
13

issued due to administrative improvidence.” (E.M., supra, 85 Cal.App.5th at 

pp. 1085–1086.) 

2. A district attorney does not have an inherent power to 

withdraw a resentencing request before the trial court 

rules on the merits.

As E.M. observed, section 1172.1 does not explicitly address a 

recommending party’s ability to withdraw its request for resentencing. 

(E.M., supra, 85 Cal.App.5th at p. 1083.) Relying on In re Fain (1976) 

65 Cal.App.3d 376, the Attorney General argues that “[t]he power to take an 

action includes the inherent power to reconsider that action,” meaning the

district attorney’s power to request resentencing includes the absolute power 

to rescind the request. E.M. rejected the same argument, concluding that 

“Fain is inapposite” because that case addressed “ ‘purely administrative’ ” 

actions, which sentencing is not. (E.M., at p. 1084.) The Attorney General 

does not explain why E.M. was incorrect or why we should nonetheless apply 

Fain here. 

Nor are we persuaded by the Attorney General’s claim that “the district 

attorney possesses the ordinary powers of a litigant in other actions,” such as 

a civil plaintiff’s right to voluntarily dismiss a case. The analogy fails, 

because section 1172.1 proceedings are not adversarial. A resentencing 

request does not initiate an action “against” the defendant, and dismissal of 

the request does not benefit the defendant. Similarly, a resentencing request 

is not akin to a motion, which the moving party is generally entitled to 

abandon. Rather, a request functions to renew the trial court’s sentencing 

jurisdiction, and permitting the executive branch to unilaterally terminate 
14

section 1172.1 proceedings would “intrude” into that jurisdiction, raising 

separation-of-powers concerns.8 (E.M., supra, 85 Cal.App.5th at p. 1085.) 

The Attorney General also argues that district attorneys have the 

“ ‘right and duty to examine and reexamine facts, existing or newly 

discovered,’ which can, at times, result in a discretionary change of position.” 

(Quoting Leo v. Superior Court (1986) 179 Cal.App.3d 274, 289.) This may be 

true in the exercise of the “prosecutorial function,” such as that at issue in

Leo, where the defendant challenged an order permitting the prosecution “to 

revise its initial decision not to seek the death penalty and to instead pursue 

the death penalty against [him].” (Id. at pp. 277, 289; see Dix, supra, 

53 Cal.3d at p. 451 [noting prosecution’s “sole discretion” to determine what 

punishment to seek].) Here, however, the decision to recommend 

resentencing is not a core prosecutorial function. To the contrary, it is one

that correctional authorities may exercise as well, and one they were 

empowered to exercise well before the statute was amended to include 

district attorneys. Indeed, section 1172.1 does not differentiate between 

recommending parties in addressing the required procedures. In all cases,

the primary discretionary power exercised under the statute is the trial 

court’s, not the recommending party’s.

In short, a district attorney’s ability to request resentencing does not 

imply an unfettered authority to withdraw the request. Accordingly, and 

8 For his part, Vaesau draws an analogy to criminal proceedings, in 

which the district attorney lacks the inherent authority to dismiss charges.

Under sections 1385 and 1386, “ ‘the prosecutor may not unilaterally 

abandon a prosecution’ ” and “ ‘ “can only recommend dismissal to the court. 

Dismissal is within the latter’s exclusive discretion.” ’ ” (Nazir v. Superior 

Court (2022) 79 Cal.App.5th 478, 491.) We need not address whether this 

comparison is sound, because we conclude for other reasons that a district 

attorney cannot unilaterally withdraw a resentencing request.
15

consistent with E.M., we conclude that termination of a section 1172.1 

proceeding is not mandatory if the district attorney no longer supports 

resentencing. In other words, the mere fact that the district attorney

withdraws a request does not preclude a trial court from concluding that 

recall and resentencing is nonetheless appropriate. Rather, once a request is 

made, the court has jurisdiction to resentence the defendant if it chooses to do 

so. (See E.M., supra, 85 Cal.App.5th at p. 1082.)

3. A trial court is not required to reach the merits every time 

a resentencing request is made.

Having rejected the Attorney General’s position, we turn to Vaesau’s. 

Vaesau claims that by permitting the district attorney to withdraw the 

resentencing request, the trial court violated two aspects of section 1172.1: 

the presumption in favor of resentencing when an outside party requests it, 

and the statute’s hearing requirements. According to him, these provisions 

require a trial court to reach the merits of resentencing once a request is 

made. E.M. did not have occasion to address this issue, since in that case the 

Secretary rescinded the request only after the trial court had denied it on the 

merits. (See E.M., supra, 85 Cal.App.5th at p. 1081.) We conclude that 

courts are not required to reach the merits of every resentencing request.

Vaesau first claims that permitting the district attorney to withdraw

the resentencing request violated the provision that if resentencing is 

requested by an outside party, “[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.” 

(§ 1172.1, subd. (b)(2).) He argues that this provision establishes “that once 

[a] district attorney files a recommendation for recall and resentencing,” the 

trial court must resentence the defendant unless it finds that the defendant 

poses the requisite risk. 
16

We are not persuaded by this reading of section 1172.1, because it 

would preclude a trial court from denying a resentencing request without 

prejudice. In its normal legal sense, a presumption is an “inference or 

assumption that a fact exists because of the known or proven existence of 

some other fact,” and “[m]ost presumptions are rules of evidence calling for a 

certain result in a given case unless . . . [they are] overcome[] . . . with other 

evidence.” (Black’s Law Dict. (11th ed. 2019) p. 1435.) Section 1172.1’s 

presumption functions as such, dictating that if an outside party requests 

resentencing, recall and resentencing shall occur unless that result is 

overcome by proof that the defendant poses an unreasonable risk of danger to 

public safety. (§ 1172.1, subd. (b)(2).) In other words, the presumption 

affects the ultimate issue of whether resentencing is appropriate.

But there could be procedural reasons for a trial court to deny or 

dismiss a resentencing request before reaching the merits, such as if the 

request was submitted for the wrong defendant. In such situations, requiring 

a court to nonetheless determine whether the defendant posed an 

unreasonable risk of danger to public safety would be a pointless exercise. 

Indeed, a risk determination requires significant evidence, such as the 

defendant’s prison record, yet a court would have to make the determination 

even if it lacked sufficient evidence to do so. The Legislature could not have 

intended such a result. (See People v. Mendoza, supra, 23 Cal.4th at p. 908.)

Our conclusion is consistent with other indicators of legislative intent. 

In passing Assembly Bill No. 1540, the Legislature found that the “law 

enforcement agencies [that can submit resentencing requests] devote 

significant time, analysis, and scrutiny to each referral that they make.” 

(Stats. 2021, ch. 719, § 1, subd. (g).) The Legislature also expressed its 

“intent . . . for judges to recognize the scrutiny that has already been brought 
17

to these referrals by the referring entity, and to ensure that each referral be 

granted the court’s consideration by setting an initial status conference, 

recalling the sentence, and providing the opportunity for resentencing for 

every felony conviction referred by one of these entities.” (Id., § 1, subd. (h); 

see, e.g., Off. Of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 

No. 1540, Sept. 3, 2021, p. 3 [bill will “honor the significant time, thought, 

and effort that law enforcement agencies put into referrals”]; Assem. Com. on 

Public Safety, Rep. on Assem. Bill No. 1540, as amended Apr. 22, 2021, p. 6 

[presumption creates “fairly high bar” for denying resentencing because

“these are cases which have already been vetted as being appropriate for 

recall and resentencing by . . . law enforcement agencies”].)

Contrary to Vaesau’s claim otherwise, permitting a resentencing 

request to be withdrawn before the trial court reaches the merits is not 

“antithetical” to the legislative goal of giving the recommendation weight. As 

explained above, the statutory presumption affects the merits of 

resentencing, and it does not derogate from the recommending party’s 

appraisal of the issue to terminate a section 1172.1 proceeding without 

prejudice. Indeed, where the resentencing request was erroneously made, 

permitting the recommending party to withdraw it respects that party’s most 

up-to-date assessment. We tend to agree with the Attorney General 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. (See Stats. 2021, ch. 719, § 1, subds. (a)–(e).)

Vaesau also argues that allowing the district attorney to withdraw the 

resentencing request violated section 1172.1’s hearing requirements. Under 

subdivision (a)(8) of the statute, “[r]esentencing shall not be denied, nor a 
18

stipulation [to resentencing without a hearing] rejected, without a hearing 

where the parties have an opportunity to address the basis for the intended 

denial or rejection.” In addition, when a resentencing proceeding is initiated 

at an outside party’s request, “[t]he [trial] court shall provide notice to the 

defendant and set a status conference within 30 days after the date that the 

court received the request.” (§ 1172.1, subd. (b)(1).) 

We agree with the Attorney General that the trial court did not 

contravene these statutory requirements. Assuming the court could even be 

said to have “denied” resentencing, the ruling was clearly without prejudice, 

and the court held a hearing at which the parties were able to address its 

basis for allowing the district attorney to withdraw the resentencing request. 

Furthermore, Vaesau received notice of the resentencing proceeding, and the 

court proceeded promptly in calendaring the matter. To the extent he

suggests that section 1172.1’s hearing provisions require a hearing on the 

merits once a resentencing request is made, we reject the argument for the 

reasons we have discussed above.

Vaesau also argues that “[u]nder the rule of casus omissus, a matter 

that is not covered by a statute must be treated as not covered.” This canon 

of statutory interpretation, also known as the omitted-case canon, provides 

that “[n]othing is to be added to what the text states or reasonably implies.” 

(Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012) 

p. 93, boldface omitted.) It is based on the principle “that 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.” (Cemetery Board v. Telophase Society 

of America (1978) 87 Cal.App.3d 847, 858.)
19

The omitted-case canon does not mandate the conclusion that trial 

courts lack authority to deny or dismiss resentencing requests without 

prejudice. “Trial 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.’ ” (People v. Lujan (2012) 211 Cal.App.4th 

1499, 1507; Weiss v. People ex rel. Dept. of Transportation (2020) 9 Cal.5th 

840, 857; see Code Civ. Proc., § 187.) Of course, as Vaesau notes, 

section 1172.1 does specify procedures to be followed when a trial court 

considers a resentencing request. But those procedures are not exhaustive,

and the statute’s failure to spell out every situation in which a court might 

validly terminate a proceeding without prejudice hardly suggests that courts 

are compelled to decide every single request on the merits.

To be sure, “courts must tread carefully when exercising their inherent 

authority to fashion new procedures. We may not sanction procedures of 

dubious constitutional validity. [Citation.] Nor may we bless procedural 

innovations inconsistent with the will of the Legislature or that usurp the 

Legislature’s role by fundamentally altering criminal procedures.” (People v. 

Lujan, supra, 211 Cal.App.4th at p. 1507; see Weiss v. People ex rel. Dept. of 

Transportation, supra, 9 Cal.5th at p. 857.) These limits do not prevent a 

trial court from dismissing a resentencing request without prejudice, but they 

do restrict the circumstances under which the court may permit a district 

attorney to withdraw such a request.

4. A district attorney must have a legitimate basis for

withdrawing a resentencing request.

To summarize, a trial court may, but is not required to, allow a district 

attorney to withdraw a resentencing request before the court reaches the 

merits, thereby terminating a section 1172.1 proceeding without prejudice. 

Although this is a discretionary choice, it must be guided by section 1172.1’s 
20

objectives and the defendant’s due process rights. In particular, the motion 

to withdraw the request must be based on a legitimate reason. Here, a

remand for reconsideration is warranted, because it is unclear whether the 

trial court appreciated the full scope of its discretion to deny the district 

attorney’s motion to withdraw—particularly given the district attorney’s 

failure to explain the change in course.9

The district attorney offered almost no justification for withdrawing the 

resentencing request. The only point mentioned, other than the mere desire 

to do so, was the new prosecutor’s statement that the resentencing request 

was “very thin on the record even to provide to the Court.” It is not clear 

whether this statement referred to the request itself, which did not address 

why the district attorney recommended resentencing or include any 

supporting documentation, or to a general dearth of available information. 

But the request appears to have been based on a thorough evaluation of 

Vaesau’s suitability for resentencing. As the parole-hearing transcript 

demonstrated, the original prosecutor was familiar with Vaesau’s case, and 

she identified several reasons supporting his release. Jenkins, the new 

District Attorney, was entitled to reconsider the recommendation, but there 

is no evidence that any substantive reevaluation occurred. Indeed, she

moved to withdraw the recommendation only a week after taking office.

Vaesau argues that permitting a district attorney “to withdraw its 

recommendation on a whim, or due to a change in the political winds, is not 

consistent with [Assembly Bill No. 1540’s] purpose.” We agree. The intent 

behind the presumption in favor of resentencing, to recognize “the significant

9 As a result of this conclusion, we need not address Vaesau’s argument 

that reversal is required because the district attorney violated principles of 

prosecutorial ethics. 
21

time, analysis, and scrutiny” behind resentencing requests (Stats. 2021, 

ch. 719, § 1, subd. (g)), is thwarted if a district attorney is allowed to 

withdraw a request without justification. This legislative goal does not 

require a trial court to reach the merits of every resentencing request, but it 

does require a court to consider the basis for a motion to withdraw. As E.M.

suggests, there could be a range of valid reasons to withdraw a request, 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.” (E.M., supra, 85 Cal.App.5th at pp. 1085–1086.) But the 

legitimacy of the proffered reason must be considered on a case-by-case basis, 

and standing alone, it is insufficient that the district attorney no longer backs 

resentencing. 

Due process concerns also support requiring a district attorney to offer 

a valid reason for deciding to withdraw a resentencing request. In People v. 

Pillsbury (2021) 69 Cal.App.5th 776, the Third District Court of Appeal held 

that defendants recommended for resentencing under former section 1170(d), 

like defendants recommended for compassionate release, have a “ ‘substantial 

interest in personal liberty’ ” that entitles them to due process in proceedings 

under the statute. (Pillsbury, at p. 790, quoting Loper, supra, 60 Cal.4th at 

p. 1161, fn. 3.) Although Pillsbury’s holding focused on the attendant 

procedural protections, which Assembly Bill No. 1540 later codified, due 

process generally “protects individuals from the arbitrary action of 

government.” (Pillsbury, at p. 789, citing Kentucky Dept. of Corrections v. 

Thompson (1989) 490 U.S. 454, 460.) Moreover, the California Constitution 

requires “the appearance of fairness to those involved” in a proceeding. 

(People v. Sanchez (2017) 18 Cal.App.5th 727, 756.) Allowing a district 

attorney to withdraw a resentencing request without explanation, especially
22

under the political circumstances here, raises the specter of arbitrary action 

and does not carry the appearance of fairness.

The trial court correctly determined that it was not necessarily

required to reach the merits of the resentencing request and it correctly made 

no determination that the district attorney had an absolute right to withdraw 

the request. Nonetheless, the court concluded that it was “within the ambit 

of [the district attorney’s] discretion” to do so, even though the district 

attorney failed to explain why the motion to withdraw was justified. It may 

well be that on remand, the district attorney can offer a legitimate reason for 

the change in position, but no such reason is apparent from the record before 

us. Thus, we conclude that the court must revisit its discretionary decision to 

terminate the section 1172.1 proceeding. 

III.

DISPOSITION

The August 11, 2022 order granting the district attorney’s motion to 

withdraw the resentencing request is vacated. The matter is remanded for 

the trial court to reconsider whether to permit the district attorney to 

withdraw the request.
23

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Banke, J.

_________________________

Bowen, J.*

*Judge of the Superior Court of the County of Contra Costa, assigned 

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

Constitution.

People v. Vaesau A165925
24

Trial Court: City and County of San Francisco Superior Court

Trial Judge: Bruce E. Chan

Counsel: 

Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and

Katie L. Stowe, Deputy Attorneys General, for Plaintiff and Respondent.

People v. Vaesau A165925