Filed 9/30/26 P. v. Evans CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A172530
v.
RICKEY BERNARD EVANS, JR., (Contra Costa County
Defendant and Appellant. Super. Ct. No. 05000703165)
Defendant Rickey Bernard Evans, Jr. filed a notice of appeal from a
superior court order denying his request for resentencing under Penal Code
section 1172.1.1 We conclude that the superior court’s order was not
appealable and we therefore dismiss the appeal.
BACKGROUND2
When Evans was 19 years old, he fatally stabbed a man in the neck in
the man’s bedroom and, after stealing lighter fluid from a convenience store,
set the room on fire. (Evans I, supra, 2011 LEXIS 2648, *3–9 [nonpub. opn.].)
1 All further statutory references are to the Penal Code, unless
otherwise indicated.
2 We draw some facts and procedural history from prior unpublished
opinions, People v. Evans (Apr. 12, 2011, A126898) [nonpub. opn.] (Evans I)
and People v. Evans (Mar. 27, 2014, A133304, 133829) [nonpub. opn.] (Evans
II). (See Cal. Rules of Court, rule 8.1115(b)(2); Pacific Gas & Electric Co. v.
City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.)
1
Evans was convicted of second degree murder (§ 187) with an enhancement
for the personal use of a deadly weapon (§ 12022, subd. (b)(1)), arson of an
inhabited structure (§ 451, subd. (b)), and first degree residential burglary
(§§ 459, 460, subd. (a)) with an enhancement allegation that a non-
participant was present during the commission of the offense (§ 667.5,
subd. (c)(21)). He was also found to have suffered a prior strike conviction
(§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)). His
prior strike conviction was for aggravated assault (§ 245, subd. (a)(1)), which
he committed when he was 18 years old. Evans was sentenced to an
indeterminate term of 30 years to life for the second degree murder conviction
and a determinate term of 9 years and four months for the other crimes.
While incarcerated, Evans assaulted his defense attorney and, a few
months later, a deputy sheriff. (Evans II, supra, *3–4 [nonpub. opn.].) Evans
was convicted of assault on a government official with the intent to prevent
the performance of his official duties (§ 217.1, subd. (a)) with an enhancement
for the personal use of a deadly weapon (§ 12022, subd. (b)(1)), assault with a
deadly weapon or by force likely to produce great bodily injury (former § 245,
subd. (a)(1)),3 and assault on a peace officer by force likely to produce great
bodily injury (§ 245, subd. (c)) with an enhancement for inflicting great bodily
injury (§ 12022.7, subd. (a)). As a second strike offender, Evans was
sentenced to an additional 13 years, bringing his aggregate determinate term
to 22 years and four months.
3 Former section 245, subdivision (a)(1) alternatively covered both
assault with a deadly weapon and assault causing great bodily injury.
Section 245, subdivision (a), has since been amended to separate the
prohibitions against assault “with a deadly weapon” and assault “by any
means of force likely to produce great bodily injury” into different
subdivisions. (Stats. 2011, ch. 183, § 1, p. 2394.)
2
In August 2023, Evans filed a letter requesting the superior court to
appoint him counsel and stating his belief that he qualified for resentencing.
Specifically, he sought legal assistance for what he termed an “1170
ammendment [sic]”4 and a “Franklin hearing.”5 The next month, the court
appointed counsel. Several months later the court set a hearing, and the
clerk’s docket and minutes contained a notion that the hearing pertained to a
plea for a “Franklin Hearing.”
At the hearing in 2024, Evans appeared remotely with counsel. The
superior court opened the hearing by stating its understanding that the
matter “wasn’t going to proceed.”6 Defense counsel acknowledged that Evans
was not eligible for a Franklin hearing because his sentence included a prior
strike. However, defense counsel requested “to briefly address the Court and
ask [it] to consider striking the prior strike or [to] allow[] [defense counsel] to
file briefing outlining why the strike should be struck pursuant to AB 600.”7
4 Under section 1170, subdivision (d)(1)(A), “[w]hen a defendant who
was under 18 years of age at the time of the commission of the offense for
which the defendant was sentenced to imprisonment for life without the
possibility of parole has been incarcerated for at least 15 years, the defendant
may submit to the sentencing court a petition for recall and resentencing.”
5 In People v. Franklin (2016) 63 Cal.4th 261, 283–284, the California
Supreme Court announced procedures allowing for a limited remand to
determine whether a defendant was afforded sufficient opportunity to make a
record of information relevant to an eventual youth offender parole hearing
and, if not, to permit the defendant to prepare an adequate record for the
Board of Parole Hearings to fulfill its statutory obligations.
6 The presiding superior court judge at the hearing was not the same
judicial officer who had appointed counsel.
7 Effective January 1, 2024, Assembly Bill 600 amended section 1172.1
to expand a trial court’s authority to recall and resentence on “its own motion
. . . at any time if the applicable sentencing laws at the time of original
sentencing are subsequently changed by new statutory authority or case
law.” (Stats. 2023, ch. 446, § 2.)
3
The court replied, “You’re going to have to brief it.” The court emphasized
that it did not know “anything about Mr. Evans’[s] case,” therefore, for it to
consider the request “it would have to be briefed.” After the district attorney
stated the People’s position that Evans was “not eligible,” the court
expounded: “Honestly, I didn’t know that was going to come up as an issue
because what I did receive was very brief in regard to why this wasn’t going
to go forward.” The court proceeded to determine a briefing schedule and set
a future hearing, explaining to Evans that his attorney “[was] going to file a
written motion for why the Court should strike a strike . . . to consider
[Evans] for a Franklin hearing.”
In December 2024, Evans filed a document titled, “Defense Request To
Strike The Strike So That Mr. Evans Is Eligible For A Youth Offender Parole
Hearing.” The brief invited the superior court to “exercise its discretion”
under section 1172.1 “to recall Mr. Evans’[s] sentence and strike his strike
prior.” The prosecution filed a “response” to Evans’s request, arguing that
the court was not obligated to respond to Evans’s request, the sentencing
court acted within its discretion, and Evans’s assault offenses while he was
incarcerated weighed against striking his prior strike conviction.
The superior court heard the matter in January 2025. Evans did not
appear, and defense counsel said that she did not “have any representations”
as to why he was absent. Counsel then pivoted to a different matter,
explaining that she had “been trying to secure [Evans’s] [child protective
services] records” and it was “unclear to [her] whether the original sentencing
court had the benefit of them . . . .” The court did not immediately address
the issue, choosing instead to “explain . . . where the Court is.” The court
stated that it had read Evans’s request and the People’s response, and “[i]n
reviewing all the documents,” the court concluded that “all the evidence, but
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for Mr. Evans’ three classes that he has taken in state prison in 2016 and
2018 was known at the time of the sentencing.” It further stated that
“[section] 1172.1 is not subject to a defendant’s request, and the Court can
simply not respond” and “[i]n this case” it was not inclined grant the request.
The court did not elaborate on its reasoning.
Defense counsel still questioned whether the original sentencing court
had a “comprehensive understanding” of Evans’s child protective services
records, to which the superior court replied that it had reviewed “memos from
back in 2009” and it looked “like what they had was extremely complete.”
The court concluded: “base[d] on everything I read, I’m denying a request for
the Court to consider striking the strike under [section] 1172.1.”
The superior court’s denial was recorded in the clerk’s docket and
minutes. Evans appealed.
DISCUSSION
Before reaching the merits, we must, as always, assure ourselves of our
jurisdiction. (See People v. Clark (2021) 67 Cal.App.5th 248, 254 [“Because
an appealable judgment or order is essential to appellate jurisdiction, the
appellate court must consider the question of appealability sua sponte, and
dismiss the appeal if the judgment or order is found to be nonappealable”].)
Evans contends that the denial of his request for the trial court to recall his
sentence and resentence him on its own motion pursuant to section 1172.1
was a post-judgment order affecting his substantive rights and therefore
appealable under section 1237, subdivision (b) (section 1237(b)). We disagree.
“ ‘ “It is settled that the right of appeal is statutory and that a judgment
or order is not appealable unless expressly made so by statute.” ’ ” (Teal v.
Superior Court (2014) 60 Cal.4th 595, 598 (Teal).) Section 1172.1 does not
address whether a trial court’s denial of a defendant’s request for recall and
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resentencing under the statute is appealable. However, section 1237(b)
“provides that a defendant may appeal from ‘any order made after judgment,
affecting the substantial rights of the party.’ ” (Teal, at p. 598.)
Here, the trial court’s decision declining to recall Evans’s sentence
occurred after judgment. The superior court denied Evans’s request in
writing after doing so orally at the hearing. The People acknowledge that
“the denial of an invitation for recall may technically constitute an ‘order,’ ”
and in the instant matter we find that the court’s written decision denying
Evans’s request meets the definition of a judicial “order” under section
1237(b). (See People v. Hodge (2024) 107 Cal.App.5th 985, 993–994 (Hodge),
and cases cited.) Accordingly, the dispositive issue is whether the post-
judgment order denying Evans’s request for resentencing affected Evans’s
“substantial rights.” (§ 1237(b).)
There is no “comprehensive interpretation of the term ‘substantial
rights’ as used in section 1237, subdivision (b) . . . .” (People v. Loper (2015)
60 Cal.4th 1155, 1161, fn. 3 (Loper).) Merits-based resentencing orders are
generally understood to affect “substantial rights” for purposes of allowing a
postjudgment appeal under section 1237(b). (See e.g., People v. Arias (2020)
52 Cal.App.5th 213, 220, fn. 7 [holding a defendant’s substantial rights were
at stake where court recalled the defendant’s sentence and resentenced
defendant under former section 1170, subdivision (d)(1), predecessor
provision to section 1172.1].) However, whether a postjudgment order affects
the substantial rights of the party turns “on the nature of the claim and the
court’s ruling thereto.” (Teal, supra, 60 Cal.4th at p. 600, fn. omitted.)
Section 1172.1, subdivision (a) authorizes a trial court to recall and
resentence a defendant within 120 days of commitment or, at any time, when
applicable sentencing laws have changed or upon the recommendation of
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specified correctional or law enforcement authorities. (§ 1172.1, subd. (a)(1).)
When recall and resentencing is initiated under the statute, the court must
follow specified procedures, such as providing the parties an opportunity to be
heard (§ 1172.1, subd. (a)(9)), and consider specific factors, including, but not
limited to, “the disciplinary record and record of rehabilitation of the
defendant while incarcerated,” “evidence that undermines the integrity of the
underlying conviction or sentence,” and whether the defendant was under 26
years of age on the date the offense was committed. (§§ 1172.1, subd. (a)(5),
1016.7, subd. (b); see generally § 1172.1, subd. (a)(2)–(9).) When an
authorized agency requests sentencing, additional safeguards apply,
including notice, a status conference, appointment of counsel, and advisement
of the right to appeal. (§ 1172.1, subds. (b)(1), (d).)
A defendant, however, cannot initiate recall and resentencing.
Subdivision (c) provides: “A defendant is not entitled to file a petition seeking
relief from the court under this section.” (§ 1172.1, subd. (c).) Additionally,
“If a defendant requests consideration for relief under this section, the court
is not required to respond.” (Ibid.)
A consistent line of appellate authority has “interpreted the second
sentence of section 1172.1, subdivision (c) to mean that defendants do not
have a substantial right at stake when they request recall and resentencing.”
(People v. Brinson (2025) 112 Cal.App.5th 1040, 1046 (Brinson); People v. Roy
(2025) 110 Cal.App.5th 991, 998–1000 (Roy); People v. Faustinos (2025) 109
Cal.App.5th 687, 696–697 (Faustinos); Hodge, supra, 107 Cal.App.5th at
pp. 996–997; see also People v. Brammer (2025) 117 Cal.App.5th 675, 696
[“an order declining to exercise such discretion is not appealable and we lack
the authority to rule on the merits”], review granted April 15, 2026, S295037;
People v. Anaya (2025) 117 Cal.App.5th 615, 622 [“to the extent appellant
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appealed the trial court’s decision on his section 1172.1 request, that ‘decision
is not an appealable order . . . .’ ”].) As the court in Hodge explained: “That
sentence excuses the trial court from any responsibility to rule on [a
defendant-initiated] a request, or even to respond. It follows that a defendant
who chooses to file an unauthorized request for resentencing has no right to a
ruling. The defendants may have a liberty interest at stake in any decision
as to whether they should remain incarcerated. But a defendant has no right
to demand that the trial court actually make such a decision. If the
defendant has no right to a decision, the trial court’s choice not to make one
does not deprive the defendant of any right, much less a substantial one.”
(Hodge, at p. 996.)
The court in Hodge further stated: “A contrary holding would result in
an unprincipled and arbitrary rule governing the appealability of trial court
decisions on defendants’ requests for relief under section 1172.1. As
discussed, a trial court is not required to issue any order in response to a
defendant’s request for resentencing. If a trial court does nothing—in effect
denying a defendant’s request through silence—there will be no order for a
defendant to appeal. However, if any order denying a defendant’s request for
resentencing under section 1172.1 is appealable, a trial court order simply
informing a defendant that it intends to do nothing . . . would create a right
to appeal. It seems unlikely that the Legislature intended such an irrational
and arbitrary result.” (Hodge, supra, 107 Cal.App.5th at p. 996.)
We agree with Hodge’s reasoning and join the growing consensus
among appellate courts holding that a trial court’s decision to deny a
defendant’s section 1172.1 request for recall and resentencing does not affect
his or her substantial rights and is therefore not appealable under section
1237(b).
8
Evans contends that Hodge is factually distinguishable from this case
because “the court appointed counsel, accepted briefing, and considered
whether to provide relief.” Given this context, Evans argues his appeal is
governed by People v. Olea (2025) 115 Cal.App.5th 889 (Olea). We are
unpersuaded.
In Olea, the defendant filed a document entitled “ ‘Request for Recall of
Sentence and Sentencing Pursuant to pursuant to Assembly Bill 600 and
Penal Code Section 1172.1.’ ” (Olea, supra, 115 Cal.App.5th at p. 894.) The
trial court appointed counsel, received briefing and exhibits from both sides,
and set a hearing.” (Id. at p. 895.) The court received subpoenaed records
from the state prison, “which it found ‘to be relevant and order[ed] them
released to the Defense.’ ” (Ibid.) Another hearing was set on Olea’s petition,
Olea’s counsel submitted additional exhibits, and both sides submitted
supplemental briefing. (Id. at pp. 895–896.) At the hearing on Olea’s
petition, the trial court invited further argument. (Id. at p. 896.) “The trial
court ultimately stated it would not ‘exercise its discretion to recall [Olea’s]
sentence and will not recall and resentence the defendant at his request
pursuant to Penal Code Section 1172.1.’ In making its ruling, the trial court
cited section 1172.1, subdivision (c), which indicated that a defendant was not
entitled to file a petition seeking relief under section 1172.1, and if such a
petition was filed, the court was under no obligation to respond. The court
also noted that it found the original sentence to be just, particularly given the
‘extremely abhorrent and shocking actions’ Olea committed [in the
commission of his crimes] . . . .” (Olea, at p. 896.)
On appeal, our colleagues in the Sixth District held that under these
circumstances, the trial court order affected Olea’s substantial rights. (Id. at
p. 901.) The court in Olea distinguished Hodges, Faustinos, and Roy on two
9
grounds. (Olea, supra, 115 Cal.App.5th at pp. 901–902.) First, the trial court
had taken certain “procedural steps” that “effectively mirrored” the rights
afforded after an authorized agency initiates resentencing under section
1172.1, subdivision (b)(1). (Olea, at p. 902.) Among other things, the court
appointed counsel, ordered the release of subpoenaed records from the
California Department of Corrections and Rehabilitation to the defense, and
conducted a contested hearing, at which Olea appeared remotely. (Id. at
p. 901.) Moreover, the records from the California Department of Corrections
and Rehabilitation documented Olea’s behavior and activities in prison, one
of the postconviction factors a court “shall” consider when evaluating whether
to recall and resentence a defendant under section 1172.1, subdivision (a).
(Olea, at p. 901.)
Second, the court in Olea found it “significant” that “after providing
both sides an opportunity to be heard” at the contested hearing, the trial
court addressed the merits, stating that it found Olea’s original sentence
appropriate. (Olea, supra, 115 Cal.App.5th at p. 902.) In view of the
procedural rights afforded to the defendant “in conjunction with merit-based
statements made at the contested final hearing,” the Olea court concluded
that “the trial court effectively evaluated and denied Olea’s petition on the
merits, thus affecting Olea’s substantial rights.” (Ibid.)
More recently, People v. Craig (2026) 117 Cal.App.5th 1165, 1173
adopted Olea’s logic under similar circumstances. There, the defendant filed
a petition invoking section 1172.1 and attached supporting documents, the
People opposed, and “the superior court held a hearing, which Craig attended
remotely.” (Craig, p. 1169.) Because Craig had retained counsel and had the
relevant prison records, the superior court did not appoint counsel or release
prison records, but otherwise “the superior court took most of the same
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procedural steps the superior court in Olea did.” (Id. at p. 1173 & fn. 3.)
“After hearing argument from counsel at a hearing Craig attended remotely,
the court denied the petition, not because the petition was unauthorized, but
on the merits.” (Id. at p. 1173.) Specifically, the trial court declined to
resentence Craig because it believed Craig should be bound by his plea
agreement and because of the circumstances of the robbery, during which
Craig “terrorized the victims and the community.” (Ibid.) Accordingly, the
court of appeal found that the superior court had made a sentencing decision
on the merits under section 1172.1 and “[t]hat decision affected Craig’s
substantial rights.” (Id. at pp. 1173–1174.)
By contrast, the superior court in the instant matter did not consider
Evans’s petition the way section 1172.1 requires the court to respond to an
authorized request, nor did it discuss the merits of Evans’s section 1172.1
petition or the facts of the case. Evans expressly requested appointment of
counsel to pursue resentencing under section 1170 and a Franklin hearing;
his request did not mention section 1172.1. The court’s order appointing
counsel was not related to a status conference on a request to initiate recall
and resentencing as described in section 1172.1, subdivision (b)(1). At the
hearing following the appointment of counsel, the superior court was
unprepared to discuss defense counsel’s ad hoc request to “strik[e] the prior
strike.” While defense counsel referenced Assembly Bill 600, neither counsel
nor the court mentioned section 1172.1 when the court permitted briefing.
We further observe that the superior court responded to Evans’s 2023 letter
by appointing counsel and initially set a hearing before Assembly Bill 600’s
amendment to section 1172.1 became effective. That amendment granted the
trial court authority to recall and resentence a defendant “on its own motion
. . . at any time if the applicable sentencing laws at the time of original
11
sentencing are subsequently changed by new statutory authority or case
law.” (Stats. 2023, ch. 446, § 2.) Given this chronology, we see no reason for
the court to have suspected that Evans would invoke Assembly Bill 600 at
the hearing, and therefore we do not view the court’s invitation to Evans to
brief the issue as evidence that the court subsequently made a merits-based
determination.
At the next hearing, the court did not invite argument, as section
1172.1, subdivision (a)(9) requires when a court decides to resentence a
defendant. Nor did it order production of Evans’s child protective services
records that defense counsel stated that she had “been trying to secure.”
Instead, the court responded that it believed all the relevant information had
been known at the time of sentencing. While the court made clear that it had
reviewed the case history, it did not discuss the facts or otherwise address the
merits of Evans’s petition. Rather, the court stated that it was not required
to respond to Evans’s request, and it phrased its ruling as “denying a request
for the Court to consider striking the strike under [section] 1172.1.”
Given the manner in which the superior court handled Evans’s petition,
Olea and Craig are inapposite. Like the lower courts in Hodge, Faustinos,
Roy, and Brinson, the superior court here did not make a sentencing decision.
Therefore, Evans’s substantial rights were not affected by the court’s denial
of his request for recall and resentencing under section 1172.1.
DISPOSITION
The appeal is dismissed.
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_________________________
Gordon, J.*
WE CONCUR:
_________________________
Streeter, Acting P. J.
_________________________
Goldman, J.
People v. Evans/A172530
* Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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