P. v. Arnold

Filed 4/28/21 P. v. Arnold CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON NICHOLAS ARNOLD,
Defendant and Appellant.
B305073
(Los Angeles County
Super. Ct. No. GA077104)
APPEAL from an order of the Superior Court of Los
Angeles County, Suzette Clover, Judge. Affirmed.
Jennifer Hansen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Matthew Rodriguez,
Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Michael R. Johnsen, Noah P. Hill, and Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________

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Jason Nicholas Arnold challenges the trial court’s denial of
a recommendation by the California Department of Corrections
and Rehabilitation (CDCR) that the court recall his sentence in
light of Senate Bill No. 1393. The trial court declined to recall
the sentence, holding that Senate Bill No. 1393 does not apply to
final judgments.
We affirm the trial court’s order. Arnold’s judgment
became final in 2012, and Senate Bill No. 1393 only applies to
nonfinal judgments. The trial court therefore properly denied
CDCR’s request to recall Arnold’s sentence based upon Senate
Bill No. 1393.
FACTUAL AND PROCEDURAL SUMMARY
In an information filed on August 2, 2012, the People
charged Arnold with second degree robbery (Pen. Code, § 211)1
and attempted carjacking (§§ 215, subd. (a), 664). The
information also alleged Arnold suffered two prior serious felony
convictions. (§ 667, subd. (a)(1).)
Arnold entered a plea of no contest to the charges and
admitted the two prior serious felony convictions. On October 25,
2012, the trial court sentenced him to a total term of 22 years,
eight months in state prison. The term included two five-year
prior conviction enhancements under section 667, subdivision
(a)(1). Arnold did not appeal.
On July 2, 2019, CDCR recommended that the trial court
recall Arnold’s sentence pursuant to section 1170, subdivision (d),
and resentence Arnold in light of Senate Bill No. 1393, which
grants trial courts the discretion to strike prior serious felony
1 Subsequent statutory references are to the Penal Code.

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conviction enhancements. On July 29, 2019, the trial court
denied the request, making the following findings in the
accompanying minute order: “The court takes no action on the
request of the Department of Corrections dated July 2, 2019, for
the court to exercise its discretion as to the 5-year state prison
enhancement. [Arnold’s] case was final when the new law went
into effect. The new law does not apply to cases that are final.”
Arnold timely appealed.
DISCUSSION
Arnold argues the trial court mistakenly concluded the
finality of his judgment was a bar to providing the requested
relief. We disagree. Given that we conclude Senate Bill No. 1393
does not apply to final judgments, the trial court properly
declined CDCR’s recommendation to recall Arnold’s sentence.
A. Senate Bill No. 1393
Prior to enactment of Senate Bill No. 1393, trial courts had
no authority to strike enhancements under section 667,
subdivision (a)(1). (People v. Alexander (2020) 45 Cal.App.5th
341, 344 (Alexander).) Senate Bill No. 1393, which became
effective January 1, 2019, removed the prohibition on striking
such enhancements by deleting the following provision of former
section 1385, subdivision (b), which stated: “This section does not
authorize a judge to strike any prior conviction of a serious felony
for purposes of enhancement of a sentence under Section 667.”
(Sen. Bill No. 1393 (2017-2018 Reg. Sess.) ch. 1013, § 2.) Section
1385, subdivision (b)(1), now provides that “[i]f the court has the
authority . . . to strike or dismiss an enhancement, the court may
instead strike the additional punishment for that enhancement
in the furtherance of justice . . . .”

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Whether Senate Bill No. 1393’s amendment of section 1385
is to be applied retroactively to cases that are final is a question
of law that we review de novo. (People v. Failla (2006) 140
Cal.App.4th 1514, 1520.)
B. CDCR’s Recommendation to Recall Arnold’s
Sentence
Section 1170, subdivision (d)(1), authorizes a court to
“recall the sentence and commitment previously ordered,” and
resentence a defendant “at any time upon the recommendation
of” the Secretary of CDCR. Of relevance here, the secretary may
recommend that a sentence be recalled when there is a change in
sentencing law “due to new statutory or case law authority with
statewide application.” (Cal. Code Regs., tit. 15, § 3076.1, subds.
(a)(3) & (d)(1).)
On July 2, 2019, CDCR wrote to the trial court “to provide
the court with authority to resentence [Arnold] pursuant to . . .
section 1170, subdivision (d).” The basis for CDCR’s
recommendation was as follows: “Courts were previously barred
from striking prior serious felony convictions for purposes of
enhancement under this section. However, . . . courts are now
authorized to exercise their discretion to strike prior serious
felony convictions for purposes of enhancement under this
section, or to strike the punishment for the enhancement under
this section, pursuant to section 1385. [¶] In light of the court’s
newfound authority to not impose a consecutive enhancement
pursuant to section 667, subdivision (a)(l) (authority which did
not exist at the time of Arnold’s sentencing) [CDCR]
recommend[s] that inmate Arnold’s sentence be recalled and that
he be resentenced in accordance with section 1170, subdivision
(d).”

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Although CDCR’s recommendation does not explicitly
mention Senate Bill No. 1393, the change to section 1385 that is
referenced in its request was made by Senate Bill No. 1393. (See
People v. Stamps (2020) 9 Cal.5th 685, 693, fn. omitted [“On
September 30, 2018, the governor approved Senate Bill No. 1393
. . . allowing a trial court to dismiss a serious felony enhancement
in furtherance of justice”].) CDCR’s request is therefore premised
upon Senate Bill No. 1393, squarely raising the question whether
its amendment of section 1385 should be applied to Arnold’s
sentence.
Respondent contends the trial court is not obliged to accept
CDCR’s recommendation. Rather, the court first should consider
whether there is a legal basis to recall the sentence. We agree.
By virtue of its permissive language, authorizing CDCR to make
a “recommendation,” and specifying the court “may” recall the
sentence, section 1170, subdivision (d)(1), affords the trial court
the opportunity first to determine whether to recall the sentence,
and then to conduct a resentencing hearing in the event it does
recall the sentence. (See Dix v. Superior Court (1991) 53 Cal.3d
442, 459 & fn. 13 [the trial court is not required to accept CDCR’s
recommendation to recall a sentence]; People v. Frazier (2020) 55
Cal.App.5th 858, 866 [a recommendation by CDCR does not
trigger “any right to the recommended relief”]; see also People v.
McCallum (2020) 55 Cal.App.5th 202, 214 [concluding that upon
receiving a recommendation from CDCR under § 1170, subd.
(d)(1), the trial court should have considered the briefing
submitted by the parties before deciding whether to recall the
sentence].)

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Therefore, we first examine the basis for CDCR’s
recommendation to determine whether the trial court erred in
declining to recall Arnold’s sentence.
C. The Trial Court Properly Declined CDCR’s
Recommendation to Recall Arnold’s Sentence
Because Senate Bill No. 1393 Does Not Apply
Retroactively to Final Judgments
Arnold entered his plea, and was convicted and sentenced
in October 2012. Because he did not appeal from the judgment,
Arnold’s conviction became final in December 2012. (Alexander,
supra, 45 Cal.App.5th at pp. 344-345, citing In re Spencer (1965)
63 Cal.2d 400, 405 [a conviction becomes final when “courts can
no longer provide a remedy to a defendant on direct review”] and
Cal. Rules of Court, rule 8.308(a) [a defendant has 60 days to
appeal].)
The California Supreme Court has concluded that Senate
Bill No. 1393 is an ameliorative change in sentencing law that
applies retroactively to defendants whose judgments were not
final as of January 1, 2019. (People v. Stamps, supra, 9 Cal.5th
at p. 699; People v. Bell (2020) 47 Cal.App.5th 153, 198;
Alexander, supra, 45 Cal.App.5th at pp. 345-346.) In Alexander,
our colleagues in Division Six determined that Senate Bill
No. 1393 does not apply to final judgments. (Alexander, supra, at
p. 344.) Its decision is based upon the settled rule that “ ‘ “in the
absence of an express retroactivity provision[,] . . . [or] unless it is
very clear from extrinsic sources that the Legislature . . . must
have intended a retroactive application,” ameliorative legislation
does not affect convictions that have become final. [Citation.]’ ”
(Id. at p. 345, quoting People v. Martinez (2018) 4 Cal.5th 647,
655; see also People v. McKenzie (2020) 9 Cal.5th 40, 46 [“the

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cutoff point for application of ameliorative amendments [is] the
date when the ‘case[ ]’ [citation] or ‘prosecution[ ]’ is ‘reduced to
final judgment’ ”], quoting In re Estrada (1965) 63 Cal.2d 740,
746, 747 (Estrada).)
We agree with Alexander that there is “nothing in Senate
Bill [No.] 1393’s legislative history indicating that the law applies
to final convictions.” (Alexander, supra, 45 Cal.App.5th at
p. 345.)
To the contrary, a comparison of Senate Bill No. 1393’s
amendment of section 1385 with other statutes or voter
initiatives in which courts have applied an ameliorative reform
retroactively to final judgments reveals why we must apply the
presumption that “ameliorative legislation does not affect
convictions that have become final.” (People v. Martinez, supra, 4
Cal.5th at p. 655.)
For instance, our Supreme Court held that the Three
Strikes Reform Act, passed by the voters in Proposition 36 in
2012 to reduce the punishment prescribed for certain third strike
defendants, retroactively applied to final judgments because the
sentence recall provision, found at section 1170.126 “creates a
special mechanism that entitles all persons ‘presently serving’
indeterminate life terms imposed under the prior law to seek
resentencing under the new law.” (People v. Conley (2016) 63
Cal.4th 646, 657 (Conley).) The court concluded Proposition 36
applied to final judgments because: “In enacting the recall
provision, the voters . . . took the extraordinary step of extending
the retroactive benefits of the [Three Strikes Reform] Act beyond
the bounds contemplated by Estrada—including even prisoners
serving final sentences within the [Three Strikes Reform] Act’s
ameliorative reach—but subject to a special procedural

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mechanism for the recall of sentences already imposed. In
prescribing the scope and manner of the [Three Strikes Reform]
Act’s retroactive application, the voters did not distinguish
between final and nonfinal sentences, as Estrada would presume,
but instead drew the relevant line between prisoners ‘presently
serving’ indeterminate life terms—whether final or not—and
defendants yet to be sentenced.” (Conley, supra, at pp. 657-658.)
Similarly, our Supreme Court held Proposition 47, passed
by the voters in 2014 to reduce common theft- and drug-related
felonies to misdemeanors, applied to final judgments because,
“[l]ike the [Three Strikes] Reform Act, Proposition 47 is an
ameliorative criminal law measure that is ‘not silent on the
question of retroactivity,’ but instead contains a detailed set of
provisions designed to extend the statute’s benefits retroactively.”
(People v. DeHoyos (2018) 4 Cal.5th 594, 603, quoting Conley,
supra, 63 Cal.4th at p. 657.) Proposition 47’s recall provisions
“include . . . a recall and resentencing mechanism for individuals
who were ‘serving a sentence’ for a covered offense as of
Proposition 47’s effective date. (§ 1170.18, subd. (a).” (DeHoyos,
supra, at p. 603.) Finally, the court observed that like the Three
Strikes Reform Act, Proposition 47’s recall provision “expressly
makes resentencing dependent on a court’s assessment of the
likelihood that a defendant’s early release will pose a risk to
public safety, undermining the idea that voters ‘categorically
determined that “imposition of a lesser punishment” [§ 1170.18]
will in all cases “sufficiently serve the public interest.” ’ ”
(DeHoyos, supra, at p. 603, quoting Conley, supra, at p. 658.)
Finally, we held Proposition 64, passed by the voters in
2016 to reduce several felony cannabis offenses to misdemeanors,
applied to final judgments because “Proposition 64, like

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Proposition 36, ‘is not silent on the question of retroactivity[,]’ . . .
[because i]t provides for a procedure analogous to Proposition 36’s
procedure ‘for application of the new lesser punishment to
persons who have previously been sentenced.’ ” (People v. Rascon
(2017) 10 Cal.App.5th 388, 394, citation omitted, quoting Conley,
supra, 63 Cal.4th at pp. 657 & 658.) “Proposition 64, like
Proposition 36, expressly restricts the availability of the reduced
criminal penalties to those inmates who do not pose an
unreasonable risk of danger to public safety (Health & Saf. Code,
§ 11361.8, subd. (b)), thereby making ‘retroactive application of
the lesser punishment contingent on a court’s evaluation of the
defendant’s dangerousness.’ ” (Rascon, supra, at p. 394, quoting
Conley, supra, at p. 658.) We therefore concluded: “In light of the
similarities between the two propositions as to resentencing, we
infer a similar intent on the part of the electorate—to create
access to resentencing for prisoners previously sentenced for
specified marijuana-related crimes . . . .” (Rascon, supra, at
p. 394.)
Unlike the amendments to the Penal Code made by
Propositions 36, 47, and 64, the amendment made by Senate Bill
No. 1393 was to remove a prohibition on a trial court’s sentencing
authority by authorizing it to strike additional punishment for
prior serious felony convictions. Unlike those Propositions,
Senate Bill No. 1393 created no recall mechanism applicable to
persons currently serving sentences. And, unlike those
Propositions, Arnold has not identified any legislative history
suggesting the Legislature intended to take “the extraordinary
step of extending the retroactive benefits of [Senate Bill
No. 1393] beyond the bounds contemplated by Estrada—[to
include] even prisoners serving final sentences within [Senate

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Bill No. 1393]’s ameliorative reach . . . .” (Conley, supra, 63
Cal.4th at pp. 657-658.)
Arnold acknowledges his conviction became final in 2012,
but contends that “[i]n accordance with . . . section 1170,
subdivision (d) as updated in 2018, CDCR’s recommendation
letter on behalf of [Arnold] provided the trial court with authority
to resentence him.” The reason Arnold offers is that “[u]nder the
new version of section 1170[, subdivision] (d), the resentencing
court is expressly given authority to ‘reduce a defendant’s term of
imprisonment and modify the judgment, including a judgment
entered after a plea agreement, if it is in the interest of justice.[’]
(. . . § 1170, subd. (d)(1).)”
This argument misses the mark. It is true that the
recommendation by CDCR vests the trial court with jurisdiction
to consider recalling a sentence. (People v. McCallum, supra, 55
Cal.App.5th at pp. 210, 217.) It is also true that section 1170,
subdivision (d)(1), was amended in 2018 to authorize the court
“resentencing under this paragraph” to modify the judgment “in
the interest of justice” on consideration of certain “postconviction
factors.”2 Nonetheless, “the inclusion of postconviction factors in
2 The 2018 amendment added the following language to
section 1170, subdivision (d)(1): “The court resentencing under
this paragraph may reduce a defendant’s term of imprisonment
and modify the judgment, including a judgment entered after a
plea agreement, if it is in the interest of justice. The court may
consider postconviction factors, including, but not limited to, the
inmate’s disciplinary record and record of rehabilitation while
incarcerated, evidence that reflects whether age, time served, and
diminished physical condition, if any, have reduced the inmate’s
risk for future violence, and evidence that reflects that
circumstances have changed since the inmate’s original

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section 1170, subdivision (d)(1), [provides] guidance for the trial
court’s resentencing decision, not its initial decision whether to
recall the sentence.” (Ibid.)
Arnold does not cite any legal authority that requires a
trial court to recall a lawfully imposed sentence based on CDCR’s
recommendation for the purpose of applying a change in
sentencing law enacted after the judgment of conviction is final,
absent any indication that the Legislature intended the amended
law to apply retroactively to final judgments. We have not
located any authority to support this proposition. Because there
is no basis for the trial court to retroactively apply Senate Bill
No. 1393’s amendment of section 1385 to Arnold’s sentence, the
trial court did not err in failing to recall his sentence.
D. Recent Cases Addressing the Scope of a Court’s
Resentencing Authority are Inapposite
Arnold argues that “[i]f [his] sentence from 2012 were to be
recalled pursuant to [section]1170[, subdivision] (d)(1), there
would no longer be a final judgment.” He cites recent cases for
the proposition that when a sentence is recalled, the original
sentence is no longer operative, freeing the trial court to apply
ameliorative laws because the judgment is no longer final. (See
People v. Hwang (2021) 60 Cal.App.5th 358, review granted
Apr. 14, 2021, S267274 (Hwang); People v. Lopez (2020) 56
Cal.App.5th 835, review granted Jan. 27, 2021, S265936 (Lopez);
contra, People v Federico (2020) 50 Cal.App.5th 318, 321, review
granted Aug. 26, 2020, S263082 (Federico).) This argument rests
on a false premise. As we have explained, CDCR’s
sentencing so that the inmate’s continued incarceration is no
longer in the interest of justice.” (Stats. 2018, ch. 36, § 17.)

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recommendation did not operate to recall Arnold’s sentence, and
the trial court did not err in declining to recall the sentence.
Unless and until the trial court determines the sentence should
be recalled, Arnold’s judgment is final and his sentence stands as
originally imposed.
The cases Arnold relies upon involved resentencing
hearings held to consider clarifications in sentencing laws as
determined by subsequent court decisions, which called into
question the legality of the sentence imposed. In Hwang, CDCR
initiated proceedings under section 1170, subdivision (d)(1), by
recommending the defendant’s sentence be recalled because the
sentence might have been unlawful under People v. Rodriguez
(2009) 47 Cal.4th 501 (Rodriguez). (Hwang, supra, 60
Cal.App.5th at p. 362.) Rodriguez held the trial court erred in
imposing punishment for both a firearm enhancement and a gang
enhancement, which had potential application to the sentence
imposed in Hwang. (Rodriguez, supra, at p. 504; Hwang, supra,
at p. 362.) Thus, the referral by CDCR in Hwang rested on the
possibility that the trial court had imposed an unlawful sentence.
(Hwang, supra, at p. 362.)
Similarly, in Lopez, CDCR recommended recall of a
sentence pursuant to People v. Le (2015) 61 Cal.4th 416, which
applied Rodriguez to another pair of sentencing enhancements,
and called into question the propriety of the sentence imposed on
the defendant. (Lopez, supra, 56 Cal.App.5th at p. 839; see Le,
supra, at p. 419.) The Hwang court agreed with Lopez that the
recall of the sentence in turn “reopened the finality of [the]
judgment,” at the time of resentencing, which allowed the trial
court to consider the application of ameliorative statutes enacted
after the initial judgment had become final. (Hwang, supra, 60

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Cal.App.5th at p. 366; Lopez, supra, at p. 845; contra, Federico,
supra, 50 Cal.App.5th at pp. 324-326.)3
In Arnold’s case, CDCR’s referral for resentencing is not
premised on the possibility that Arnold’s sentence is unlawful.
Because we conclude there is no basis for recall of Arnold’s
sentence, the cases concerning the breadth of the trial court’s
sentencing authority once a sentence is recalled are inapposite.
3 Two additional cases pending review in the Supreme
Court also concern the scope of the trial court’s resentencing
authority when reconsidering potentially unlawful sentences. In
Federico, CDCR recommended recall of a sentence pursuant to
People v. Gonzalez (2009) 178 Cal.App.4th 1325, which barred
imposition of both an enhancement for great bodily injury and a
gang enhancement. (Federico, supra, 50 Cal.App.5th at p. 321.)
People v. Padilla (2020) 50 Cal.App.5th 244, review granted
August 26, 2020, S263375, involves a resentencing hearing
following a successful challenge to a sentence in light of
intervening decisions concerning the sentencing of juveniles to
life without parole. (Id. at p. 247.)

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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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