People v. Lugo CA6

Filed 11/10/22 P. v. Lugo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049501 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 189590)

v.

JOSEPH LUGO,

Defendant and Appellant.

MEMORANDUM OPINION1 In 1997, defendant Joseph Lugo was convicted of attempted first degree burglary. (Pen. Code, §§ 664, 459, 460, subd. (a).)2 The jury also found that he had two strike prior convictions (§§ 667, subds. (b)-(i), 1170.12), two serious felony prior convictions (§ 667, subd. (a)), and four prison priors (§ 667.5, subd. (b)). The trial court imposed a total term of 38 years to life. In January 2020, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) sent a letter to the trial court recommending that it recall Lugo’s sentence pursuant to former section 1170, subdivision (d). The trial court declined to consider modifying or reducing Lugo’s sentence on the ground that Senate

1 We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.) The facts of the offense are immaterial to this appeal. 2 Subsequent undesignated statutory references are to the Penal Code.

Bill No. 1393, which amended section 667, subdivision (a), applied only to cases not final on appeal when it went into effect on January 1, 2019. The trial court reasoned that Senate Bill No. 1393 was not intended to apply retroactively, and was therefore inapplicable to Lugo’s case, which was final prior to its passage. Lugo appeals from the trial court’s denial on the grounds that the trial court abused its discretion under former section 1170, subdivision (d), by not recalling his sentence as recommended by the Secretary. Alternatively, Lugo contends that under the newly enacted section 1172.1,3 the matter should be remanded to the trial court for a hearing in accordance with its mandates. The Attorney General concedes that we should reverse and remand for the trial court to consider the Secretary’s recommendation, given the change in the law. The Attorney General’s concession is well-taken. Section 1172.1, which took effect this year, added several requirements to the recall and resentencing process, including notice, appointment of counsel, a hearing, and a statement of reasons for the ruling on the record. (§ 1172.1, subds. (a)(6), (7), (8), & (b)(1).) Where, as here, the Secretary initiates a recall and resentencing request, section 1172.1 imposes “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.” (§ 1172.1, subd. (b)(2).) The new section further requires a court to “apply any changes in law that reduce sentences or provide for judicial discretion” when resentencing under the recall statute. (§ 1172.1, subd. (a)(2).) 3 Newly enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.), which took effect on January 1, 2022, moved the recall and resentencing provision originally in section 1170, subdivision (d) to section 1170.03 and revised its terms. (Assem. Bill No. 1540, Stats. 2021, ch. 719, § 3.1.) After Lugo filed his opening brief, section 1170.03 was renumbered to section 1172.1, without change, effective June 30, 2022. (Assem. Bill No. 200, Stats. 2022, ch. 58, § 9.) For the sake of clarity, we refer to section 1172.1, the current section number, in addressing Lugo’s appeal.