Filed 9/24/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ALEX MENDEZ,

Defendant and Appellant.

B306301

(Los Angeles County

Super. Ct. No. PA058263)

APPEAL from an order of the Superior Court of Los 

Angeles County. Cynthia L. Ulfig, 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, Senior 

Assistant Attorney General, Noah P. Hill and Michael R. 

Johnsen, Supervising Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________________
2

Jose Alex Mendez appeals the denial of a recommendation

by the secretary of the California Department of Corrections and 

Rehabilitation (CDCR) to recall his sentence under Penal Code1

section 1170, subdivision (d)(1). Appellant contends the trial 

court abused its discretion by failing to adequately weigh his

postconviction record and affording him no opportunity to be 

heard regarding the recommendation by the CDCR to recall his 

sentence.

The California Code of Regulations requires the secretary 

to provide a copy of the recommendation letter and Cumulative 

Case Summary to the inmate (Cal. Code Regs., tit. 15, § 3076.1, 

subd. (e)(2)), and in this case, the secretary also provided copies 

of the abstract of judgment and minute orders, along with the 

recommendation letter and Cumulative Case Summary to the

Los Angeles County District Attorney’s Office and the Los 

Angeles County Public Defender’s Office. There is no indication 

in the record, however, that the trial court gave the parties notice 

or an opportunity to present additional information relevant to 

the court’s decision. In view of the substantial liberty interest at 

stake when the secretary issues a recommendation to recall an 

inmate’s sentence, we reverse and remand the matter to the trial 

court to give notice to the parties, to allow the parties the 

opportunity to supplement the CDCR’s recommendation with 

additional relevant information, and to enable the trial court to 

exercise its discretion whether to recall appellant’s sentence in 

light of such information as well as any briefing the parties might 

choose to submit.

1 Undesignated statutory references are to the Penal Code.
3

PROCEDURAL2 BACKGROUND

Appellant was convicted by a jury in November 2008 of 12 

counts of second degree robbery (§ 211) and one count of 

attempted second degree robbery (§§ 664/211), with personal

weapon use enhancement findings as to 12 of the 13 counts 

(§ 12022.53, subd. (b)). The trial court sentenced appellant to 13 

years 8 months on the 13 counts of conviction plus 46 years 8 

months on the weapon enhancements, for a total term of 60 years 

4 months in prison. This court rejected appellant’s claim on 

appeal that the sentence was excessive and affirmed the 

judgment in People v. Mendez (Jul. 21, 2010, B214453 [nonpub. 

opn.]).

By letter to the Los Angeles County Superior Court dated 

August 14, 2019, the secretary of the CDCR recommended a 

recall of appellant’s sentence and resentencing in accordance with 

section 1170, subdivision (d). The letter was marked “received” 

in Department 30 on August 27, “received” in Department L on 

October 1, 2019, and filed in the superior court on October 15, 

2019.

In the letter, the secretary noted that appellant’s sentence 

included numerous weapon enhancements under section 

12022.53, subdivision (b), which were mandatory at the time of 

appellant’s sentencing. However, pursuant to the amendment to 

section 12022.53, subdivision (h), effective January 1, 2018, 

“courts are now empowered with discretion to strike or dismiss a 

personal use firearm enhancement at sentencing or resentencing 

2 Because this appeal raises no issues concerning the facts 

of the underlying offenses, we omit a statement of facts. (See 

People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
4

pursuant to PC Section 1170, subdivision (d), in the interest of 

justice pursuant to PC Section 1385.” Enclosed with the letter 

were the abstract of judgment, minute orders, the charging 

documents, and a cumulative case summary. Based on the 

secretary’s review of those documents, the secretary 

“recommend[ed] the inmate’s sentence be recalled and that he be 

resentenced.”

In a written order dated October 16, 2019, the trial court 

rejected the secretary’s request for recall and resentencing. The 

court stated it had reviewed the court file, the documents

enclosed with the letter, and the reasons for the secretary’s 

recommendation, including appellant’s record of good conduct 

while in prison. The court then summarized appellant’s criminal 

history3 and his current offenses. The trial court concluded that 

“[b]ased on the facts of the commitment offenses plus his prior 

arrest history the defendant is clearly a danger to the 

community. The request pursuant to PC 1170(d) therefore is 

denied.”

DISCUSSION

A. Governing Law and the Standard of Review

Section 1170, subdivision (d)(1) was enacted in 1976 as part 

of California’s Determinate Sentencing Act, which marked the 

state’s transition from an indeterminate to a determinate 

sentencing system. (People v. McCallum (2020) 55 Cal.App.5th 

3 According to the trial court, appellant’s prior criminal 

history included an arrest at the age of 18 for assault with a 

firearm—prosecution declined, another arrest 18 months later for 

attempted murder—case dismissed, and a felony conviction for 

which he was placed on formal probation. While on probation he 

committed the current offenses.
5

202, 210 (McCallum); Dix v. Superior Court (1991) 53 Cal.3d 442, 

455 (Dix).) The subdivision operates as “an exception to the 

common law rule that the court loses resentencing jurisdiction 

once execution of sentence has begun” (Dix, at p. 455) by 

authorizing a court to recall the defendant’s sentence “within 120 

days of the date of commitment on its own motion, or at any time 

upon the recommendation of the secretary of the Board of Parole 

Hearings in the case of state prison inmates, the county 

correctional administrator in the case of county jail inmates, or 

the district attorney of the county in which the defendant was 

sentenced.” (§ 1170, subd. (d)(1); People v. Frazier (2020) 55 

Cal.App.5th 858, 863 (Frazier); McCallum, at p. 210.)

“In deciding whether to recall a sentence under section 

1170, subdivision (d)(1), the trial court may exercise its authority 

‘for any reason rationally related to lawful sentencing.’ (Dix, 

supra, 53 Cal.3d at p. 456.)” (McCallum, supra, 55 Cal.App.5th 

at p. 210.) After recalling the sentence, the court may 

“resentence the defendant in the same manner as if they had not 

previously been sentenced, provided the new sentence, if any, is 

no greater than the initial sentence.” (§ 1170, subd. (d)(1).) The 

court must also “apply the sentencing rules of the Judicial 

Council so as to eliminate disparity of sentences and to promote 

uniformity of sentencing” and grant credit for time served. 

(§ 1170, subd. (d)(1).)

The Legislature has amended section 1170, subdivision 

(d)(1) numerous times. In particular, the 2018 amendments 

permit courts to modify judgments and consider postconviction 

factors, by adding the following language: “The court 

resentencing under this paragraph may reduce a defendant’s 

term of imprisonment and modify the judgment, including a 
6

judgment entered after a plea agreement, if it is in the interest of 

justice. The court may consider postconviction factors, including, 

but not limited to, the inmate’s disciplinary record and record of 

rehabilitation while incarcerated, evidence that reflects whether 

age, time served, and diminished physical condition, if any, have 

reduced the inmate’s risk for future violence, and evidence that 

reflects that circumstances have changed since the inmate’s 

original sentencing so that the inmate’s continued incarceration 

is no longer in the interest of justice.” (Stats. 2018, ch. 36, § 17; 

McCallum, supra, 55 Cal.App.5th at p. 210.)

The denial of a CDCR recommendation to recall a sentence 

is appealable. (§ 1237, subd. (b) [appeal lies from “any order

made after judgment, affecting the substantial rights of the 

party”]; see People v. Loper (2015) 60 Cal.4th 1155, 1158, 1163; 

McCallum, supra, 55 Cal.App.5th at pp. 210, 211, fn. 7.) We 

review the trial court’s decision not to recall an inmate’s sentence 

for abuse of discretion and will not disturb the ruling absent a 

showing that “ ‘ “ ‘the trial court exercised its discretion in an 

arbitrary, capricious, or patently absurd manner that resulted in 

a manifest miscarriage of justice.’ ” ’ ” (People v. Miracle (2018) 6 

Cal.5th 318, 346–347; McCallum, at p. 211.)

B. Due Process Requires that the Sentencing Court Give 

the Parties Notice of the CDCR’s Recommendation for 

Recall and Resentencing and an Opportunity to 

Submit Briefing and Additional Information Relevant 

to the Recommendation Before Ruling on the Sentence 

Recall Request

The regulations enacted to implement section 1170, 

subdivision (d)(1)’s recall and resentencing authorization require 

that the recommendation letter and Cumulative Case Summary 
7

“be forwarded to the sentencing court and a copy shall be 

provided to the inmate.” (Cal. Code Regs., tit. 15, § 3076.1, 

subd. (e)(2).) But section 1170, subdivision (d)(1) itself contains 

no guidance to the trial court on providing notice of the CDCR’s 

recommendation to the parties, and the statute is silent with 

regard to the parties’ rights to be heard on the merits of the 

recommendation. (People v. Williams (2021) 65 Cal.App.5th 828, 

833 (Williams).)

Several courts have considered what, if any, due process 

rights are implicated by the issuance of a CDCR recall and 

resentencing recommendation. In McCallum, supra, 55 

Cal.App.5th 202, after examination of the statutory language of 

section 1170, subdivision (d)(1) in the context of section 1170 as a 

whole, our colleagues in Division Seven concluded that an inmate 

has no due process right to a hearing under section 1170, 

subdivision (d)(1) on the issue of whether the trial court should 

follow a CDCR recommendation for recall and resentencing. (Id. 

at pp. 206, 211–216.) However, in light of an inmate’s 

“substantial right to liberty implicated by the secretary’s 

recommendation to recall [the] sentence,” Division Seven went on 

to conclude that the trial court had abused its discretion by 

rejecting the secretary’s recommendation without affording the 

parties an opportunity to present briefing and additional 

information relevant to the recommendation. (Id. at pp. 206–207, 

218–219.)

Shortly after its decision in McCallum Division Seven 

concluded that the secretary’s filing of a letter recommending 

recall and resentencing triggers neither a right to a hearing nor 

any due process right to appointment of counsel. (Frazier, supra, 

55 Cal.App.5th at pp. 866, 869.) While recognizing that a 
8

summary refusal to follow the secretary’s recommendation under 

section 1170, subdivision (d)(1) is appealable as a postjudgment 

order affecting the inmate’s substantial rights, the court 

observed, “[T]he Sixth Amendment right to counsel at critical 

stages of a criminal proceeding through sentencing does not 

apply to postjudgment collateral challenges [citations], including 

statutory petitions seeking a more ameliorative sentence 

[citations], at least prior to the actual recall of sentence.” (Id. at 

pp. 865–866.) In short, a CDCR recommendation does not trigger 

“any right to the recommended relief” (id. at p. 866), and “[t]here 

simply is no constitutional right to counsel or a hearing in 

connection with every postjudgment request with the potential to 

affect a substantial right” (id. at p. 867).

Finally, in Williams, supra, 65 Cal.App.5th 828, the People 

appealed after the trial court resentenced the defendant pursuant 

to section 1170, subdivision (d)(1) without holding a resentencing 

hearing. (Id. at p. 832.) Williams vacated the sentence and 

remanded to the sentencing court, holding that “before a trial 

court exercises its discretion pursuant to section 1170 of the 

Penal Code to recall a sentence and enter a reduced term, it 

must: (i) give the parties notice and an opportunity to be heard 

in accordance with the procedural guidelines we suggest; and 

(ii) set forth the reasons for its choice of sentence.” (Id. at p. 831, 

fn. omitted.)

Williams declared, “It is axiomatic that due process 

requires the sentencing court to give the parties formal notice of 

CDCR’s recommendation and the opportunity to be heard if the 

court is considering resentencing defendant.” (Williams, supra, 

65 Cal.App.5th at p. 833.) But the court observed that the 

California Code of Regulations requires only that the CDCR send 
9

its recommendation to the sentencing court with a copy to the 

inmate. (Ibid.; Cal. Code Regs, tit. 15, § 3076.1, subd. (e)(2).) 

And even where the CDCR does provide notice to the district 

attorney and the public defender, “[r]eliance on CDCR to provide 

copies to the parties falls short of ensuring the parties’ rights to 

notice and the opportunity to be heard are protected.” (Williams, 

at p. 833.) Williams, however, followed McCallum and expressly 

limited the inmate’s rights upon issuance of a CDCR 

recommendation to notice and an opportunity to be heard, 

holding that “[a] defendant is not entitled to a hearing on the 

issue whether the court should consider recalling his or her 

sentence in response to an equity-based CDCR recommendation.” 

(Williams, supra, 65 Cal.App.5th at p. 834.)

In the instant case, the trial court gave the parties no 

notice of the secretary’s recommendation, much less the court’s 

intent to rule on it, and there is no indication the parties had any

opportunity to supplement the recommendation with additional 

information or briefing. We agree with the courts in Williams

and McCallum that, although the trial court was not required to 

hold a hearing in considering whether to recall appellant’s 

sentence, it was bound to provide notice and consider any 

relevant information and/or briefing that the parties might 

submit before ruling on the CDCR recommendation.

4 

4 In addition to the requirements of notice and opportunity 

to be heard, Williams imposed an “array of procedural 

requirements on the trial courts” (65 Cal.App.5th at p. 836 (conc. 

opn. of Menetrez, J.)) in those cases where the court might be 

inclined to recall an inmate’s sentence for equitable reasons (id. 

at pp. 834–835 (maj. opn. of Ramirez, P. J.)). In such cases, the 
10

(McCallum, supra, 55 Cal.App.5th at p. 217, citing People v. 

Loper (2015) 60 Cal.4th 1155, 1167, and People v. Carmony 

(2004) 33 Cal.4th 367, 375; Williams, supra, 65 Cal.App.5th at 

pp. 831, 833.)

trial court “should prepare and serve on counsel for the parties its 

tentative response to the recommendation along with copies of all 

correspondence with CDCR. [Citation.] The tentative ruling 

should state with particularity the reasons for its sentence choice 

and provide counsel a window of time within which to object and 

request a hearing. [Citations.] If defendant is not represented by 

counsel, the court should appoint (or reappoint) the public 

defender.” (Id. at p. 834.) But as Justice Menetrez observed in a 

concurring opinion, the imposition of these procedural 

requirements was unnecessary to dispose of the issues before the 

court and exceeded the recommendations of the treatise upon 

which the majority exclusively relied. (Williams, at p. 836 (conc. 

opn. of Menetrez, J.); see Couzens et al., Sentencing Cal. Crimes 

(The Rutter Group 2020) § 28:8, pp. 28-20 to 28-22.)

We do not read section 1170, subdivision (d)(1) to support 

the imposition of a whole new set of procedural requirements on a 

trial court before it has recalled the defendant’s sentence. We

therefore limit our agreement with Williams to its conclusion 

that upon receipt of a recall and resentencing recommendation by 

the CDCR, the trial court must provide the parties with notice 

and an opportunity to be heard. (See McCallum, supra, 55 

Cal.App.5th at p. 215 [“[t]he question before us is not whether 

[defendant] has a right to be present at a resentencing hearing if 

the trial court determines his sentence should be recalled⎯he 

does⎯but whether the court must hold a hearing before 

determining whether to recall [his] sentence in the first place”⎯it 

does not].)
11

DISPOSITION

The order denying the California Department of 

Corrections and Rehabilitation’s recommendation to recall 

appellant’s sentence is reversed. The matter is remanded to the 

trial court with directions to allow the parties to submit 

information relevant to the California Department of Corrections 

and Rehabilitation’s recommendation and to provide briefing on 

whether the court should follow the recommendation. Upon 

receipt of this information, the court shall exercise its discretion 

whether to recall Mendez’s sentence.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.