Filed 9/9/26 P. v. Ortiz CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE,
Plaintiff and Respondent, A171671
v.
ROBERT JAMES ORTIZ,
(Contra Costa County Super. Ct.
Defendant and Appellant.
No. 05001200815)
Robert James Ortiz seeks to appeal from the trial court’s
denial of his invitation to recall his sentence and resentence him
pursuant to Penal Code section 1172.1, subdivision (a)(1)1, which
authorizes the court to initiate a resentencing proceeding on its
own motion. Because the trial court’s denial is not an appealable
order in the circumstances here, we dismiss the appeal.
BACKGROUND
A.
In 2014, after Ortiz pled guilty to forcible oral copulation in
concert (former § 288a, subd. (d), subsequently amended and
renumbered § 287 by Stats. 2018, ch. 423, § 49, eff. Jan. 1, 2019),
forcible rape in concert (§ 264.1), and carjacking (§ 215, subd. (a)),
the court sentenced him to 31 years in state prison. Consistent
with Ortiz’s negotiated plea, the trial court imposed full, upper
1 Undesignated statutory references are to the Penal Code.
1
term, consecutive sentences of nine years each for the two sex
offenses, a full three-year lower term consecutive sentence for the
carjacking offense, and a 10-year criminal street gang
enhancement for the forcible oral copulation in concert count
(§ 186.22, subd. (b)(1)(C)). The court also granted the People’s
motion to dismiss multiple other felony counts and
enhancements.
Ortiz committed the offenses in 2008, when he was 15
years old, in conjunction with adult gang members. Although he
was a minor, he was charged as an adult pursuant to then-
current law. (See Welf. & Inst. Code, § 602, former subd. (b),
subsequently amended by Stats. 2014, ch. 54, § 18, eff. Jan. 1,
2015.)
B.
Under section 1172.1, subdivision (a)(1), a trial court may
recall a defendant’s sentence and issue a new sentence under
specified circumstances. One such circumstance is when the
Secretary of the Department of Corrections and Rehabilitation
(the department) recommends that the court recall a defendant’s
sentence and resentence that defendant. (§ 1172.1, subd. (a)(1).)
When the Secretary does so, the defendant is entitled to certain
procedural rights, including the right to appointed counsel and,
before resentencing may be denied, a hearing in which the
parties can address the basis for the court’s intended denial. (See
§ 1172.1, subds. (a)(9), (b).) The defendant is also entitled to 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,
as defined in subdivision (c) of Section 1170.18.” (§ 1172.1, subd.
(b)(2).) The court may not deny or grant recall and resentencing
without stating its reasons on the record. (§ 1172.1, subd. (a)(7).)
Alternatively, even in the absence of a recommendation
from the Secretary, the court may, on its own motion, recall the
2
defendant’s sentence and resentence the defendant at any time
“if the applicable sentencing laws at the time of original
sentencing are subsequently changed by new statutory authority
or case law.” (§ 1172.1, subd. (a)(1).) However, a “defendant is
not entitled to file a petition seeking relief from the court under
this section.” (§ 1172.1, subd. (c).) “If a defendant requests
consideration for relief under this section, the court is not
required to respond.” (Ibid.)
C.
In 2023, the department notified the superior court by
letter that a “review of . . . documents” pertaining to Ortiz
“indicates the Abstract of Judgment and/or Minute Order may be
in error, or incomplete.” The letter, which was signed by a
Correctional Case Records Analyst, explained that, if the court’s
intent was to run the forcible rape count and the carjacking
counts consecutively, “they must be sentenced pursuant to
[section] 1170.1 [subdivision] (a), with a designate principal and a
subordinate term sentenced at one-third the middle term.” The
letter asked the court to “[p]lease clarify” and “[p]lease review
your file to determine if a correction is required.” In addition, the
letter asserted that, “[w]hen notified by the [department] that an
illegal sentence exists, the trial court is entitled to reconsider all
sentencing choices.”
Subsequently, Ortiz filed a brief arguing that the
department’s letter constituted a recommendation for recall and
resentencing under section 1172.1, subdivision (a)(1). Ortiz
contended that his youth contributed to his commission of the
offenses, his subsequent growth and maturity reduced any public
safety risk, and his exemplary conduct and rehabilitation while
in prison supported resentencing. The People opposed recall and
resentencing.
3
The trial court held hearings in June, August, and October
2024, at which both sides presented evidence in support of their
positions on resentencing.
At the final hearing on October 9, 2024, the trial court
noted that it had reviewed the parties’ briefing as well as the
evidence submitted by Ortiz. The court expressed its view that
the department’s letter did not constitute a recommendation for
recall and resentencing from the Secretary. The court
acknowledged that “[c]learly, Mr. Ortiz has matured and has
grown . . . in his self-awareness. And he’s done some great work
while he’s been incarcerated. . . . I think he is well on the way to
becoming a better person.” The court stated, “I just don’t see how
I have the authority or the jurisdiction to completely recall and
resentence Mr. Ortiz to anything other than what he got.” The
court also explained that it was not the case that “the Court
made an error when it did its abstract of judgment and marked . .
. consecutive, when it should have been something else . . . .
[T]hat’s not what happened here. This was a bargain[ed-]for
sentence . . . and it’s a sentence that was final 10 years ago.”
In response, Ortiz argued that “the Court may, on its own
motion, at any time” resentence him.2 Ortiz then, for the first
time, invited the court to act on its own motion. “Put the
[department’s] letter aside, . . . now is the time for the Court to
decide whether it wants to exercise the jurisdiction that it clearly
has.” Ortiz added, “I understand the Court’s decision with
regards to the [department’s] letter, but I’m asking the court to
2 In a reply brief filed after the court had already set the
October hearing, Ortiz asserted that section 1172.1 provided the
court with authority to recall and resentence at any time based
on a change in the applicable sentencing laws, but the brief did
not explain that this authority must be exercised on the court’s
own motion.
4
exercise, at this moment, . . . its jurisdiction to resentence Mr.
Ortiz.”
The court then pronounced its ruling. First, it explained
that the department’s letter “is not a request by [the Secretary] to
recall Mr. Ortiz’s sentence.” Second, the court denied Ortiz’s
request to recall his sentence on its own motion. Although the
court had authority to do so, “the [c]ourt would not have
addressed this issue at all on its own motion” had it not been for
the department’s letter. The court added, “from the Court’s point
of view this matter would never have been on my calendar again,
but for the letter from [the department], which I’ve already found
does not constitute a request for a recall.” The court “did not and
would not have recalled the sentence.”
DISCUSSION
Before we may consider the merits of Ortiz’s appeal, we
must resolve a threshold question: whether the trial court’s
denial of Ortiz’s request for recall and resentencing is an
appealable order. We agree with the People that it is not.
Ortiz originally requested resentencing based on his
position that the department’s letter constituted a
recommendation by the Secretary for recall and resentencing
under section 1172.1, subdivision (a)(1). The trial court
determined that the letter was not such a recommendation,
which is an appealable order. (See, e.g., People v. Codinha (2023)
92 Cal.App.5th 976, 986-988.) However, Ortiz does not challenge
that ruling in his appeal. Instead, he appeals from the trial
court’s denial of his request, at the end of the process, to initiate
recall and resentencing on the court’s own motion.
The right to appeal must be granted expressly by statute.
(People v. Loper (2015) 60 Cal.4th 1155, 1159.) Section 1172.1
does not address the appealability of a court’s order denying a
defendant’s request for court-initiated recall and resentencing.
5
(People v. Olea (2025) 115 Cal.App.5th 889, 897 (Olea).) Whether
Ortiz’s appeal can go forward turns on section 1237, subdivision
(b), which authorizes an appeal from a postjudgment order if it
affects a criminal defendant’s “substantial rights.” (See Olea, at
p. 897.)
Ordinarily, it does not affect a defendant’s substantial
rights when a court declines the defendant’s invitation to recall
and resentence on its own motion. (See People v. Brinson (2025)
112 Cal.App.5th 1040, 1046-1047 (Brinson); People v. Roy (2025)
110 Cal.App.5th 991, 998-1001; People v. Faustinos (2025) 109
Cal.App.5th 687, 695-697; People v. Hodge (2024) 107
Cal.App.5th 985, 995-999 (Hodge).) As Hodge explained, under
section 1172.1, subdivision (c), a defendant who invites the court
to resentence on its own motion has no right to a decision by the
trial court. (Hodge, at p. 996.) The procedural protections
applicable to referrals from the Secretary or other specified
officials do not apply, and section 1172.1 places no constraints on
the trial court’s discretion to decline such an invitation by the
defendant, which is not authorized by statute. (See § 1172.1,
subds. (b), (c); Hodge, at pp. 997-998.) In these circumstances,
“the trial court’s choice not to make” a decision on the defendant’s
request “does not deprive the defendant of any right, much less a
substantial one.” (Hodge, at p. 996.) Nor does the fact that the
trial court informs the defendant that it is declining the
invitation implicate the defendant’s substantial rights. (Id., at p.
996.)
Ortiz acknowledges the foregoing line of cases, but he
contends that his case falls into an exception recognized in Olea,
supra, 115 Cal.App.5th at pages 901-902, and People v. Craig
(2026) 117 Cal.App.5th 1165, 1173-1174 (Craig). Those cases are
unusual because the trial courts did not decline to act or
summarily deny a defendant’s request for court-initiated
resentencing. Rather, the courts effectively approved the request
6
by appointing counsel where necessary, holding hearings, and
reaching the merits before, ultimately, declining to recall the
sentence. (Olea, at pp. 895-897, 901-902; Craig, at pp. 1169-1170,
1173-1174.)
That’s not what happened here. The trial court held
hearings in response to the department’s letter, not in response
to Ortiz’s belated request for the court to act on its own motion.
It was not until the end of the process that Ortiz asked the court
to exercise its own authority to recall his sentence. The court
immediately declined to do so. It took no action that could
amount to effective approval of Ortiz’s request. Under Hodge, the
court’s decision is not appealable. (Hodge, supra, 107
Cal.App.5th at p. 996.)
We need not address the People’s arguments that Olea and
Craig were wrongly decided.
DISPOSITION
The appeal is dismissed.
BURNS, J.
WE CONCUR:
SIMONS, ACTING P. J.
CHOU, J.
People v. Ortiz (A171671)
7
