California Court of Appeal Jul 24, 2024 No. E082183Unpublished
Filed 7/24/24 P. v. Marrero CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082183
v. (Super.Ct.No. FSB033368)
PEDRO JOSE MARRERO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steve Malone,
Judge. Reversed and remanded with directions.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
The California Department of Corrections and Rehabilitation (the CDCR) mailed a
letter to the court recommending defendant and appellant Pedro Jose Marrero be
resentenced pursuant to Penal Code former section 1170.03, subdivision (a)(1),1 which
the court summarily denied without a hearing. On appeal, defendant contends the matter
should be remanded for the court to appoint him counsel and hold a hearing on the
recommendation. We reverse and remand.
I. PROCEDURAL BACKGROUND
On May 22, 2003, a jury found defendant guilty of three counts of robbery (Pen.
Code, § 211, counts 1-3) and one count of possession of methamphetamine (Health &
Saf. Code, § 11377, subd. (a), count 4). The jury also found true allegations that
defendant personally used a handgun during his commission of the counts 1 and 3
offenses (Pen. Code, § 12022.53, subd. (b)); that defendant personally used a knife during
his commission of the count 2 offense (Pen. Code, § 12022, subd. (b)(1)); that defendant
had suffered two prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12,
subd. (a)); and that defendant had suffered two prior serious felony convictions (§ 667,
subd. (a)(1)). The court sentenced defendant to 31 years plus 100 years to life in state
prison.
1 All further statutory references are to the Penal Code unless otherwise stated.
“Section 1172.1 was originally enacted as section 1170.03. (Stats. 2021, ch. 719, § 3.1.) Effective June 30, 2022, it was amended and renumbered. (Stats. 2022, ch. 58, § 9.)” (People v. Ngo (2023) 89 Cal.App.5th 116, 128, fn. 4.)
2
On February 16, 2023, personnel from the CDCR sent a letter to the court pursuant
to former section 1170.03 recommending defendant’s sentence be recalled and that the
court resentence him. Specifically, the letter brought to the court’s attention the five-year
consecutive terms the trial court imposed for the prior serious felony conviction
enhancements, which the court now had discretion to strike. The court denied the
recommendation by minute order dated March 17, 2023, without appointing counsel for
defendant or holding a hearing on the recommendation.
II. DISCUSSION
Defendant contends we should remand the matter with directions to the court to
appoint counsel for defendant and hold a hearing giving due consideration to the CDCR’s
recommendation. The People concede. We agree.
“Section 1172.1, subdivision (a)(1) states: ‘When a defendant, upon conviction
for a felony offense, has been committed to the custody of the Secretary of the
Department . . . 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 [the defendant] 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.’ The Department makes such recommendations ‘not only to
bring to the trial court’s attention sentences in need of correction (e.g., unauthorized
sentences) but also to invite the court to recall sentences based upon equitable
considerations (e.g., extending the benefit of an ameliorative change in the law to a
3
defendant whose judgment is final).’ [Citation.] The ‘recommendation furnishes 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.”’ [Citation.] Although
section 1172.1 does not prescribe any particular form for a recommendation for recall and
resentencing, the Department typically makes such a recommendation expressly in a
letter from the Secretary. [Citations.]” (People v. Codinha (2023) 92 Cal.App.5th 976,
986-987.)
If the CDCR submits such a letter, “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.” (§ 1172.1, subd. (b)(1).) “There shall be a presumption favoring recall
and resentencing of the defendant, which may only be overcome if a court finds the
defendant currently poses an unreasonable risk of danger to public safety . . . .”
(§ 1172.1, subd. (b)(2).)
Here, the CDCR submitted a letter recommending the court recall defendant’s
sentence and resentence him pursuant to former section 1170.03. Thus, the court was
statutorily required to appoint defendant counsel and hold a hearing on the
recommendation. The court erred in failing to do either. Therefore, the matter must be
reversed and remanded.
4
III. DISPOSITION
The court’s order summarily denying the CDCR’s recommendation that it recall
defendant’s sentence and resentence him is reversed. The matter is remanded so that the
court may appoint counsel for defendant and hold a hearing on the recommendation. We
express no opinion on whether defendant would be entitled to the recommended relief
upon remand.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
MENETREZ J.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that when the CDCR submits a recommendation for recall and resentencing under Penal Code section 1172.1, the trial court is statutorily required to appoint counsel for the defendant and hold a hearing on the recommendation.
Issues
Whether the trial court erred by summarily denying a CDCR recommendation for resentencing without appointing counsel or holding a hearing.
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“the court was statutorily required to appoint defendant counsel and hold a hearing on the recommendation. The court erred in failing to do either. Therefore, the matter must be reversed and remanded.”
“The matter is remanded so that the court may appoint counsel for defendant and hold a hearing on the recommendation.”