Filed 8/25/26 P. v. Canales CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089500
Plaintiff and Respondent,
(Super. Ct. Nos. BF191677B,
v. DF012954B)
EDGAR CANALES,
OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Kern County. Andrew Kendall,
Judge.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and
Caitlin Franzen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2018, defendant Edgar Canales (defendant) entered a plea of no contest to
assault on another person while incarcerated (count 1, Pen. Code, § 4501, subd. (a))1 and
admitted three prior strike allegations. The trial court struck two of the prior strikes and,
pursuant to a negotiated plea agreement, the court sentenced defendant to the upper term
of 12 years. In 2023, defendant pleaded no contest to assault with a deadly weapon while
in custody (§ 4501, subd. (a)) and admitted four prior strike allegations. The court struck
three of the strikes and sentenced defendant to two years eight months, one-third the
middle term doubled, to be served consecutive to his sentence for the 2018 conviction.
In December 2024, defendant filed a pro se motion asking to “vacate [his
sentence] pursuant to [an] invalid Thompson[2] term.” (Capitalization omitted.) The trial
court treated the motion as a section 1172.1 invitation and appointed defendant counsel to
investigate the request. The prosecutor filed an opposition, asserting the court lacked
jurisdiction to recall defendant’s sentence. Thereafter, defendant’s counsel filed a
section 1172.1 request alleging that defendant’s strikes were no longer valid but without
any supporting documentation. The court denied the request, finding it lacked
jurisdiction to recall defendant’s sentence because there was no applicable change in the
sentencing law.
Defendant now appeals from that order, asserting the order is appealable pursuant
to section 1237 in light of the trial court’s actions and the court abused its discretion in
denying his request to recall and resentence because there was an ameliorative change to
the applicable sentencing law. The People argue the appeal must be dismissed because
the court’s order is not appealable. Alternatively, they argue the court did not abuse its
discretion in declining defendant’s invitation to resentence. In supplemental briefing, the
1 All further undesignated statutory references are to the Penal Code.
2 In re Thompson (1985) 172 Cal.App.3d 256, 258.
2.
parties dispute whether appointed counsel provided ineffective assistance by failing to
raise the changes to section 1170 during the section 1172.1 proceedings.
We conclude the order appealed from is not an appealable order and, accordingly,
dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2017, defendant was charged with assault on another person while incarcerated
(count 1, § 4501, subd. (a)) and it was alleged that he had suffered three strike priors—
two attempted murder convictions (§ 664/187) and a murder conviction (§ 187,
subd. (a)), which also qualified as a serious felony conviction (§ 667, subd. (a)), in 2010.
(Super. Ct. Kern County, 2018, No. DF12954). In 2018, defendant entered a plea of no
contest to count 1 and admitted the three prior strike allegations. Defendant moved to
strike two of the strike prior findings pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, based on the nature of the offenses and his age at the time he
committed the offenses in line with prior discussions between the parties. The court
granted the motion “based on the nature of the specific offense.” Pursuant to the
negotiated plea agreement, the court sentenced defendant to the upper term of six years
doubled to 12 years, to be served consecutive to Los Angeles County case
No. BA349543-02.
In 2022, a complaint was filed against defendant and three codefendants in the
Kern County Superior Court, case No. BF191677. Defendant and two of the
codefendants were alleged to have committed assault with a deadly weapon or by means
likely to produce great bodily injury with malice aforethought while serving a life
sentence (§ 4500, count 2). It was further alleged that defendant personally inflicted
great bodily injury during the commission of the offense (§ 12022.7, subd. (a)) and that
he had suffered four strike priors and two prior serious felony convictions (§ 667,
subd. (a)). Aggravating circumstances were also alleged pursuant to California Rules of
Court, rule 4.421.
3.
In February 2023, defendant pleaded no contest to assault with a deadly weapon
while in custody (§ 4501, subd. (a)), which was added to the complaint as count 3, along
with four accompanying strike prior allegations. He also admitted the prior strike
allegations. Defendant’s plea was conditioned upon the trial court striking three of the
prior strike convictions and sentencing him to one-third the middle term sentence,
doubled to two years eight months.
The trial court granted defendant’s Romero motion as to three of the four strikes
and sentenced him, pursuant to the agreement, to one-third the middle term sentence,
doubled to two years eight months, which was to be served consecutive to his sentence
for the 2018 conviction. Accordingly, his aggregate term was 14 years eight months.
In December 2024, defendant filed a pro se motion asking to “vacate [his
sentence] pursuant to [an] invalid Thompson term.” (Capitalization omitted.) He argued
that the consecutive 14-year eight-month term was invalid based upon section 3051,
which provides an offender who committed a controlling offense as a youth (under the
age of 26) is entitled to a youth offender parole hearing after a fixed period of years.
Defendant asserted he committed the controlling offense when he was 24 years old. He
argued sections 3051 and 1170.1, subdivision (c) are “irreconcilable,” in that
section 3051 provides that a youth offender be immediately released upon being found
suitable for parole, whereas section 1170.1, subdivision (c) requires a youth offender to
serve an applicable “ ‘Thompson [t]erm’ ” even after being found suitable for release.
Defendant asked the trial court to provide him an opportunity to make a record of
mitigating evidence tied to youth, issue an order to show cause, appoint counsel to assist
him during the hearing process, declare his rights, and grant further relief the court
deemed just or proper.
On January 22, 2025, the trial court set a hearing, sua sponte, to review the matter
and determine what, if any, motions needed to be filed. At the hearing, the court
appointed defendant counsel and advised counsel to “maybe make contact” with
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defendant, get a copy of the motion, and see if there is merit to it. The court stated:
“Basically what I’m saying, we’re entertaining recalling the sentence under
[section] 1172.1.” The court set the matter for a status hearing on March 14, 2025. It
noted that it denied a removal order and stated it would not order defendant to be
removed. It also noted that it was “not recalling the sentence” and it was “not ordering
the district attorney to respond in any way.” The court was “just asking [appointed
counsel] to … investigate the motion.”
The prosecutor filed an opposition, asserting the trial court lacked jurisdiction to
recall defendant’s sentence. Additionally, the opposition alleged defendant’s contention
that his convictions were no longer valid because the underlying committing offense was
vacated was erroneous. Defendant filed a reply asserting that the court could rely on the
several statutory changes that had occurred since his original sentencing to reassume
jurisdiction, recall the sentence, and consider resentencing. He cited Penal Code
sections 1016.8, 1170.03, 1385, and Welfare and Institutions Code section 707,
subdivision (b) “insofar as it impacts whether the previous underlying Los Angeles
County conviction is still a strike or still an adult conviction,” noting he was 15 at the
time of the commission of this crime. Defendant noted that the People did not appear to
acknowledge that the court could initiate recall and resentencing on its own motion
pursuant to amended section 1172.1. He also asserted that, regardless of the specific
statutory trigger for recall, he is no longer serving a state prison sentence, so he could not
be convicted of and sentenced pursuant to section 4501. He argued his state prison
sentence for his conviction out of Los Angeles County was vacated, the matter was
remanded to the juvenile court, and the court imposed a sentence of home on probation
(for crimes defendant was convicted of in adult court) and he was “no longer serving a
state prison sentence in the L[os Angeles] County case at all.” He argued the
section “4501 convictions have lost their statutory underpinnings” and he must be
resentenced.
5.
At the next hearing, defendant was not present. The trial court stated its “thinking
on this was a little different than maybe the parties.” The court did not think it had “the
jurisdictional hook” to recall defendant’s sentence because it did not think there had been
a change in the sentencing law. The court denied the request, finding it lacked
jurisdiction to recall defendant’s sentence because there was no applicable change in the
sentencing law. Referencing the laws cited in defendant’s reply, the court stated, “I may
be wrong, but I think all of those changes were certainly in full force and effect in 2018.
I don’t think the Court has the jurisdiction to recall the sentence .…” Defense counsel
responded that “[i]t’s a rather unfortunate development from [his] client’s perspective.”
The court again stated it did not think it had jurisdiction to recall the sentence even if it
were inclined to. The prosecutor asserted it was questionable whether a defendant could
even invite the court to recall a sentence under section 1172.1. The court responded it did
not need to reach that argument because it could not recall this case under section 1172.1.
Defense counsel asked the court to delay the denial and deny the motion without
prejudice to permit him to “find something else” and “attempt to put it back on calendar.”
The court declined to delay its ruling and it denied defendant’s request for recall and
resentencing under section 1172.1, stating:
“Although there were citations to changes in the … sentencing laws,
those all appear to have been in effect in 2018 and certainly in 2023. Given
that there’s no applicable change in the sentencing law after these Kern
County sentences, at least under this statute, the Court is unable to sua
sponte recall these sentences. The Court simply does not have jurisdiction
to consider the motion; however, this does not mean [defendant] has no
ability to bring the issue to the attention of the Court through other
procedures. This ruling is simply a statement that the Court is unable to
recall the sentence under … section 1172.1. For that reason, in both of
these cases, the request is denied. And the request further to continue this
matter for further investigation is denied.”
6.
DISCUSSION
Defendant appeals from the trial court’s denial of his invitation for recall of
sentence and resentencing pursuant to Assembly Bill No. 600 (2023–2024 Reg. Sess.)
(Assembly Bill 600) and section 1172.1. He contends the court’s order affects his
substantial rights and the court erred in denying his request for relief such that the matter
must be reversed and remanded. We conclude the order appealed from is not appealable;
thus, the appeal must be dismissed.
I. Applicable Law
A. Postjudgment Jurisdiction
Where, as here, execution of sentence has commenced and the judgment is final,
the trial court is generally “deprived of jurisdiction to resentence” a criminal defendant.
(People v. Karaman (1992) 4 Cal.4th 335, 344, citing Dix v. Superior Court (1991) 53
Cal.3d 442, 455; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326.) To
obtain resentencing on a final judgment, a defendant generally must file a petition for
writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339), or proceed
by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2,
1172.6, 1172.7, 1172.75). (People v. Hernandez (2024) 103 Cal.App.5th 1111, 1118.)
Section 1172.1 (former § 1170, subd. (d)) provides an exception to the general rule
that a trial court loses jurisdiction once execution of sentence has begun by authorizing a
recall and resentencing procedure that may be invoked when, for example, the Secretary
of the Department of Corrections and Rehabilitation (CDCR) recommends resentencing.
(§ 1172.1, subd. (a)(1); People v. E.M. (2022) 85 Cal.App.5th 1075, 1082.) Assembly
Bill 600 amended section 1172.1 to allow a court to now resentence a defendant “on its
own motion” when “applicable sentencing laws at the time of original sentencing are
subsequently changed by new statutory authority or case law.” (§ 1172.1, subd. (a)(1), as
amended by Stats. 2023, ch. 446, § 2.) Accordingly, effective January 1, 2024,
7.
section 1172.1, subdivision (a)(1) provides “the court may, 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, … 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.” (Italics added.)
Section 1172.1, subdivision (a)(5) provides: “In recalling and resentencing
pursuant to this provision, the court shall consider postconviction factors, including, but
not limited to, the disciplinary record and record of rehabilitation of the defendant while
incarcerated, evidence that reflects whether age, time served, and diminished physical
condition, if any, have reduced the defendant’s risk for future violence, and evidence that
reflects that circumstances have changed since the original sentencing so that continued
incarceration is no longer in the interest of justice.… The court shall consider if the
defendant has experienced psychological, physical, or childhood trauma, including, but
not limited to, abuse, neglect, exploitation, or sexual violence, … or if the defendant
… was a youth as defined under subdivision (b) of [s]ection 1016.7 at the time of the
commission of the offense, and whether those circumstances were a contributing factor in
the commission of the offense.” Section 1172.1, subdivision (a)(7) provides “[t]he court
shall state on the record the reasons for its decision to grant or deny recall and
resentencing.” Additionally, section 1172.1, subdivision (a)(9) provides: “Resentencing
shall not be denied, nor a stipulation rejected, without a hearing where the parties have an
opportunity to address the basis for the intended denial or rejection. If a hearing is held,
the defendant may appear remotely and the court may conduct the hearing through the
use of remote technology, unless counsel requests their physical presence in court.”
Notably, section 1172.1, subdivision (c) expressly states, “A defendant is not
entitled to file a petition seeking relief from the court under this section.” Additionally:
8.
“If a defendant requests consideration for relief under this section, the court is not
required to respond.” (Ibid.)
B. Appealability of Orders on Defendant-Initiated Section 1172.1
Invitations
Our court and others have held, by stating a court may decline to respond to a
defendant’s request for relief under the statute, the language of section 1172.1,
subdivision (c) establishes there is no affirmative obligation on a trial court to consider or
rule on a defendant’s request that it initiate recall and resentencing proceedings in
response thereto. (See People v. Hodge (2024) 107 Cal.App.5th 985, 996 (Hodge) [“a
defendant who chooses to file an unauthorized request for resentencing has no right to a
ruling”]; People v. Faustinos (2025) 109 Cal.App.5th 687, 696 (Faustinos) [“A defendant
is not entitled to file a section 1172.1 petition nor to receive a ruling if he nevertheless
files one.”].) In Hodge, the trial court denied the defendant’s motion for relief pursuant
to section 745, subdivision (a) and a “ ‘request for recall of sentence and resentencing
pursuant to Assembly Bill 600 and … section 1172.1’ ” in a single order. (Hodge, at
p. 991.) With respect to the request for resentencing under section 1172.1, the order
stated simply that “ ‘[t]he court respectfully declines to exercise its discretion to recall
[the defendant]’s sentence.’ ” (Hodge, at p. 991.) The Hodge court held the order was
not appealable, reasoning the second sentence of section 1172.1, subdivision (c)
“undermine[s] any claim that defendants have a substantial right at stake when they file
an unauthorized request for resentencing.” (Hodge, at p. 996.) That is, “a trial court’s
order declining to exercise its discretion under section 1172.1 to recall a defendant’s
sentence on its own motion after receiving the defendant’s unauthorized request for
such relief does not affect the defendant’s substantial rights under section 1237,
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subdivision (b).”3 (Hodge, at p. 999; accord, People v. Roy (2025) 110 Cal.App.5th 991,
1001 [concluding that the court’s order stating it “ ‘declines to make its own motion for
recall and resentencing’ ” under section 1172.1 in response to defendant’s petition did not
affect defendant’s substantial rights and was not appealable].)
In Faustinos, supra, 109 Cal.App.5th 687, the defendant petitioned for
resentencing, discussing recent ameliorative changes to the sentencing laws, though
without discussing the application of those laws to the facts of the case. (Id. at p. 693.)
The superior court “took no action, stating it ‘[did] not have jurisdiction to consider [the]
motion.’ ” (Ibid.) On appeal, the Faustinos court held “an appeal from an order acting
on [a section 1172.1] petition (whether couched as a denial, dismissal, or any other
statement that the court is not acting) does not affect the defendant’s substantial rights.
We lack the authority to rule on the merits of appeals from orders filed in response to a
defendant’s attempt to seek resentencing under section 1172.1. (§ 1237, subd. (b).)”
(Faustinos, at p. 696.) The Faustinos court noted, “nothing stops a defendant from
requesting that the court initiate a section 1172.1 proceeding on its own motion. But the
court is never under an obligation to do so as ‘section 1172.1 places no constraints on the
trial court’s decision declining to initiate reconsideration of a sentence on its own
motion.’ ” (Faustinos, at pp. 696–697, quoting Hodge, supra, 107 Cal.App.5th at
p. 997.) Faustinos also held that, “even assuming the trial court erroneously stated, in
response to [the defendant]’s unauthorized petition, that it lacks authority to act on its
own motion, we do not think that would convert a nonappealable order to an appealable
3 In reaching its conclusion, the Hodge court qualified its holding, stating it “need not
consider in this case whether a defendant’s substantial rights are at stake when a trial
court has denied resentencing after it has (1) formally initiated a process to consider that
decision on its own motion; (2) held a hearing under section 1172.1, subdivision (a)(9);
and (3) issued a ruling explaining its reasons under subdivision (a)(7). In that situation,
the trial court’s own motion is arguably equivalent to an authorized motion by designated
authorities, creating a right for the defendant to a ruling on the merits.” (Hodge, supra,
107 Cal.App.5th at p. 999.)
10.
one.” (Faustinos, at p. 698.) The Faustinos court cited People v. Gallardo (2000) 77
Cal.App.4th 971 for the proposition that “the trial court’s statements did not make a
nonappealable order appealable because ‘appealability depends on the nature of the
decision made, not the court’s justification for its ruling.’ ” (Faustinos, at p. 698.) And a
court cannot “transform a nonappealable order (stating that it would not act on an
unauthorized motion) into an appealable one by addressing a matter that it needed not
address (its jurisdiction to act on its own), even if it was wrong about that matter.” (Ibid.)
Notably, two recent published cases have since held that when a court engages
with an invitation, takes certain procedural steps, and the record reflects the court
considered the section 1172.1 invitation on its merits in denying it, the resulting order
may be appealable. (See People v. Olea (2025) 115 Cal.App.5th 889 (Olea); see also
People v. Craig (2026) 117 Cal.App.5th 1165 (Craig). In Olea, the defendant filed a
request for recall of sentence pursuant to section 1172.1 based upon changes to
sections 1170 and 1170.1. (Olea, at p. 894.) The superior court appointed Olea counsel
and set the matter for a hearing. (Id. at p. 895.) The parties submitted additional briefing
and exhibits, and the court received subpoenaed records it stated it found “ ‘relevant’ ”
and ordered them to be released to the defense. (Ibid.) During a contested hearing at
which Olea was present remotely, the parties argued the merits of the request before the
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
… [s]ection 1172.1.’ ” (Id. at p. 896.) The court cited section 1172.1, subdivision (c) in
making its ruling and also stated it found the original sentence to be “just” given the
circumstances of the crime. (Olea, at p. 896.)
On appeal, Olea argued the trial court’s order on his section 1172.1 invitation was
appealable. (Olea, supra, 115 Cal.App.5th at p. 897.) The Sixth District Court of Appeal
agreed with Olea that the record differed from that in Hodge, Faustinos, and People v.
Roy, supra,110 Cal.App.5th 991, in that “the steps taken by the court in this case were
11.
markedly different,” and the order at issue affected Olea’s substantial rights. (Olea, at
pp. 901, 902.) The Olea court found it “noteworthy that the trial court took a number of
procedural steps that did not take place in the aforementioned cases, including
appointment of counsel at Olea’s request, ordering the release of subpoenaed records
from the CDCR to the defense, ordering the defense to provide copies of these records to
the People, and setting a contested hearing on Olea’s request, at which Olea appeared
remotely.” (Id. at p. 901.) The Olea court further noted that before releasing the
subpoenaed prison records to Olea’s counsel and the district attorney, the trial court
specifically noted that it found these records “ ‘relevant’ to the proceedings.” (Ibid.) The
Olea court found it significant that “after providing both sides an opportunity to be heard
at a contested hearing … at which Olea was present, the trial court reached the merits of
why it was, in part, declining to grant the request under section 1172.1 by stating it found
the original sentence to be appropriate, particularly given the crimes Olea committed
against [the victim].” (Id. at p. 902.) The Olea court held “[c]onsidering the entirety of
the actions taken by the trial court following Olea’s initial petition—in conjunction with
merit-based statements made at a contested final hearing, the trial court effectively
evaluated and denied Olea’s petition on the merits, thus affecting Olea’s substantial
rights.” (Ibid.)
Nevertheless, the Olea court did “not find that the trial court’s actions reflected
that it was ‘recalling and resentencing’ Olea’s sentence on ‘its own motion.’ ” (Olea,
supra,115 Cal.App.5th at p. 903.) Rather, it held that such a conclusion would run
“counter to the trial court’s explicit statement that it understood its discretion to recall and
resentence Olea but decided not to exercise such discretion.” (Ibid.) Olea acknowledged
there was no language within section 1172.1 that “would indicate that any procedural
steps taken by the trial court prior to ruling on a defendant’s self-initiated petition would
divest or limit the trial court’s discretion to not recall and resentence on its own motion,”
and there was “no abuse of discretion in the trial court’s decision not to recall and
12.
resentence Olea.” (Ibid.) That is, the Olea court found “no basis to conclude that the
trial court acted unaware of the scope of its discretion, considered impermissible factors,
or that the decision was ‘so irrational or arbitrary that no reasonable person could agree
with it.’ ” (Ibid.)
Thereafter, the Second District, Division Seven came to a similar conclusion in
Craig, supra, 117 Cal.App.5th 1165. In Craig, the defendant, who had pleaded no
contest to two felony counts in 2015, filed a petition for recall and resentencing pursuant
to section 1172.1 through retained counsel in 2024, cited subsequent changes to
sentencing laws, and submitted supporting documents. (Craig, at pp. 1167, 1169.) The
People opposed the defendant’s petition, argued his post-sentence conduct did not merit a
reduction in sentence, and submitted evidence of the defendant’s rule violations and
incidents between 2017 and 2023. (Id. at p. 1169.) The court held a hearing on the
petition during which the parties discussed defendant’s postconviction conduct and
argued the merits of whether the defendant should be entitled to relief. (Id. at pp. 1169–
1170.) “The superior court stated it ‘looked at the various documents, the history of the
case, the fact that this was a plea agreement,’ and ‘the type of robbery that was involved
in this case.’ The court stated, ‘in short, the court believes that it is incumbent upon
individuals who accept a particular plea agreement to live up to the bargain that they
agreed upon.’ ” (Id. at p. 1170.) The court discussed the circumstances of the crime for
which defendant was serving his sentence and it also stated: “ ‘And the court is not
particularly impressed with the fact that [Craig] has a job waiting for him. The court
simply believes that he should be held to the bargain that he agreed upon. And so the
court does not find it persuasive that [Craig] was young and that he has “rehabilitated”
himself. So the court will not resentence [Craig] at this time.’ ” (Ibid.) Accordingly, the
court denied the petition.
On appeal, citing Olea, the Craig court held “the superior court’s order in this case
affected Craig’s substantial rights.” (Craig, supra, 117 Cal.App.5th at p. 1173.) The
13.
Craig court reasoned that the superior court did not simply issue an order declining to
consider the unauthorized petition; rather, it “took most of the same procedural steps the
superior court in Olea did .…” (Ibid.) Craig held that the superior court not only
considered the defendant’s petition, “but did so in much the same way section 1172.1
requires the court to respond to an authorized request, such as one initiated by the
Secretary of the [CDCR],” “[i]n effect … accept[ing] [the defendant]’s request to
consider recalling his sentence and resentencing him on the court’s own motion.” (Ibid.)
Craig distinguished Gallardo and Faustinos on the ground that the superior court in those
cases summarily denied the defendants’ requests and briefly explained the reasons,
whereas in Craig, the superior court “considered and denied Craig’s request for
resentencing on the merits, thus affecting his substantial rights.” (Craig, at pp. 1174–
1175.)
The Craig court further concluded that the superior court erred in concluding a
defendant is not entitled to relief under section 1172.1 because the defendant should be
bound by plea bargains he or she agreed to. Rather, section 1172.1 authorizes the court
to resentence defendants who were convicted by plea. (Craig, supra, 117 Cal.App.5th at
p. 1176.) The Craig court held that “[b]y denying Craig’s petition because he agreed to
his sentence as part of a plea bargain, the superior court applied an incorrect legal
standard and abused its discretion.” (Ibid.) It held that the error was not harmless
because it was reasonably probable the defendant would have obtained a more favorable
result had the court not relied exclusively on the fact he was convicted on his plea. (Id. at
p. 1177.) Accordingly, the Craig court reversed the order denying the defendant’s
section 1172.1 petition for relief. (Craig, at p. 1178.)
II. Analysis
Defendant asserts he is entitled to a new sentencing hearing because the trial court
erroneously concluded it lacked jurisdiction to recall his sentence and resentence him
14.
under section 1172.1, subdivision (a)(1). Defendant contends the circumstances of his
case are analogous to those in Olea because the court “on its own motion deemed the
habeas corpus petition as a request for resentencing under section 1172.1, appointed an
attorney to file briefing and represent appellant, and then issued a ruling after the
hearing.” On reply, defendant also relies upon Craig, which issued after defendant filed
his opening brief. Defendant argues the resulting order is appealable because he had “a
substantial liberty interest in the outcome of the proceedings, and a statutory right to
appeal under sections 1172.1, subdivision (d) and 1237, subdivision (b).” He asserts the
court abused its discretion in concluding it lacked jurisdiction to recall and resentence on
its own motion because no applicable sentencing laws had changed. He contends after he
was sentenced to an upper term sentence in 2018, the Legislature amended section 1170
pursuant to Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567), effective
January 1, 2022. The People argue the appeal must be dismissed because the court’s
order does not affect defendant’s substantial rights and, thus, is not appealable. They
assert “nothing in section 1172.1 prevented the court from conducting a hearing to make
its initial determination on whether it should, on its own motion, exercise its authority to
recall the sentence.” The People rely on Gallardo and Faustinos to support their
argument that the court’s reasoned order denying defendant’s invitation did not make the
order appealable. They contend Olea was wrongly decided and, irrespective, the
circumstances of this case are distinguishable in that the court here did not evaluate the
merits of defendant’s motion. Alternatively, they contend the court reasonably declined
to grant defendant’s request for recall and resentencing as he did not identify any
applicable changes in the sentencing law—he did not raise Senate Bill 567 below—and,
if the court misunderstood the scope of its discretion, the proper remedy is for defendant
to seek a writ of mandate. In supplemental briefing, the parties dispute whether
appointed counsel for defendant was ineffective in conceding defendant was ineligible
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for relief and failing to raise Senate Bill 567 below. We conclude the order appealed
from is not appealable and, thus, the appeal must be dismissed.
“ ‘ “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.) Section 1172.1 does not address whether a trial court’s denial of a
defendant’s request for recall and resentencing under the statute is appealable. However,
section 1237, subdivision (b) “provides that a defendant may appeal from ‘any order
made after judgment, affecting the substantial rights of the party.’ ” (Teal, at p. 598.)
As discussed, section 1172.1, subdivision (c) expressly provides that the trial court
may choose not to respond to a defendant’s invitation for the court to initiate recall and
resentencing proceedings on its own motion pursuant to section 1172.1, subdivision (a) as
amended by Assembly Bill 600. And, if a court has no duty to respond to—let alone
grant—a defendant’s request for relief, it follows that a defendant has no right to the
initiation of recall and resentencing proceedings. Thus, where, as here, the court issues
an order declining such relief, it cannot be said to affect the defendant’s substantial rights
as would be required for such a postjudgment order to be appealable. (§ 1237, subd. (b).)
That is, the statutory language of section 1172.1 provides a basis as to why a
defendant should be precluded from raising the court’s alleged erroneous failure to
initiate recall and resentencing proceedings on appeal. (Cf. People v. Loper (2015) 60
Cal.4th 1155, 1167; People v. Carmony (2004) 33 Cal.4th 367, 376.) Given the plain
language of section 1172.1, subdivision (c), an order denying a defendant’s unauthorized
request for relief under the statute cannot be said to affect his substantial rights. (See
Faustinos, supra, 109 Cal.App.5th at p. 697 [“A defendant never has a right to a trial
court initiation of a section 1172.1 resentencing…. A trial court’s discretionary decision
not to initiate a proceeding on its own motion cannot be legal error that affects a
defendant’s substantial rights.”]; see also Hodge, supra, 107 Cal.App.5th at p. 997
[“section 1172.1 places no constraints on the trial court’s decision declining to initiate
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reconsideration of a sentence on its own motion”].) Rather, because a defendant has no
right to relief (i.e., a defendant has no right to the court’s initiation of recall and
resentencing proceedings on its own motion pursuant to section 1172.1), the order
denying such relief cannot be said to affect a defendant’s substantial rights. (See People
v. Brinson (2025) 112 Cal.App.5th 1040, 1049 [“a defendant who requests recall and
resentencing under section 1172.1 … does not have a substantial right at stake, and the
trial court’s decision on that request is not appealable”].)
Our conclusion does not change even if the trial court may have erroneously
concluded it lacked jurisdiction because there were no changes to the applicable
sentencing laws from the time of original sentence. Rather, the court’s statements did not
make the nonappealable order appealable because “ ‘appealability depends upon the
nature of the decision made, not the court’s justification for its ruling.’ ” (Faustinos,
supra, 109 Cal.App.5th at p. 698; People v. Gallardo, supra, 77 Cal.App.4th at p. 985.)
That is, the court could not “transform a nonappealable order (stating that it would not act
on an unauthorized motion) into an appealable one by addressing a matter that it needed
not address (its jurisdiction to act on its own), even if it was wrong about that matter.”
(Faustinos, at p. 698.)
Despite defendant’s contentions to the contrary, the record here reflects the trial
court never stated it was acting on its own motion to recall defendant’s sentence and
resentence him. Indeed, in setting a hearing, the court expressly stated it was “not
recalling the sentence” and it was “not ordering the district attorney to respond in any
way.” It did not order defendant to be present and stated it was “just asking [appointed
counsel] to … investigate [the] motion.” Importantly, unlike in Craig and Olea, the
superior court also did not discuss the merits of defendant’s request for recall and
resentencing pursuant to section 1172.1 or discuss the facts of the case at the hearing at
which it denied the request. Thus, the circumstances of this case are distinct.
Accordingly, assuming, arguendo, that Craig and Olea were correctly decided, they do
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not affect our conclusion that the order appealed from in this case does not affect
defendant’s substantial rights and, thus, is not appealable.
Because we conclude the order appealed from is not appealable, the appeal must
be dismissed. Nonetheless, defendant is not without an avenue for relief where, as here, a
court may be mistaken regarding the scope of its authority to initiate recall and
resentencing proceedings on its own motion. Rather, defendant may file a petition for
writ of habeas corpus in the trial court.4 (See People v. Belmontes (1983) 34 Cal.3d 335,
348, fn. 8 [“Where a court may have been influenced by an erroneous understanding of
the scope of its sentencing powers, habeas corpus is a proper remedy to secure
reconsideration of the sentence imposed. [Citations.] … The petition should be filed in
the sentencing court”]; see also People v. Fuhrman (1997) 16 Cal.4th 930, 946; People v.
Tenorio (1970) 3 Cal.3d 89, 95, fn. 2; see generally In re Hernandez (1966) 64 Cal.2d
850, 852.)
DISPOSITION
The appeal is dismissed.
GUERRA, J.
WE CONCUR:
HILL, P. J.
LEVY, J.
4 It further bears noting that at the final hearing, the trial court indicated it was willing to
deny the request without prejudice to refiling, though the oral order and minute order do
not expressly state whether the denial was with or without prejudice. To the extent it was
without prejudice, defendant may also refile a new invitation pursuant to section 1172.1
below.
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