People v. Ortiz CA1/5

Opinion

Filed 9/9/26 P. v. Ortiz CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)