People v. Beckemeyer CA4/1

California Court of Appeal · D077262 · 2020-10-28 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE317734
Trial judge: John M. Thompson
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), O'Rourke, Patricia Guerrero

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:20Z · confidence high

The trial court took 'no action' on a Department of Corrections and Rehabilitation (DCR) recommendation to recall the defendant's sentence for resentencing under Penal Code section 1170, subdivision (d). The Court of Appeal affirmed the judgment, finding no abuse of discretion in the summary denial.

Ruling reviewed	Standard	The court	The model
Trial court's decision to take 'no action' on the DCR's recommendation to recall sentence and resentence under Penal Code section 1170, subdivision (d). “The court did not abuse its discretion in taking no action on the recommendation here.”	abuse of discretion	not reached	agree with court The appellate court held that the trial court did not abuse its discretion in summarily denying the DCR's recommendation to recall the sentence. The court reasoned that the statute is permissive, no hearing or counsel is required, and the trial court was not bound by the specific holding in People v. McCallum because the defendant here lacked notice and counsel, making the McCallum rule impractical in this context.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the requirement for appointed counsel to conduct a full review of the record in criminal appeals where the defendant has not raised issues.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and to notify the court if no issues are found.
relied: People v. Beckemeyer (2015) 238 Cal.App.4th 461 — Prior appeal in the same case establishing the factual basis and procedural history of the defendant's conviction and sentence.
relied: People v. Garcia (2018) 28 Cal.App.5th 961 — Interprets the amendment to Penal Code section 1170, subdivision (d) allowing courts discretion to strike prior serious felony enhancements.
relied: People v. Humphrey (2020) 44 Cal.App.5th 371 — Holds that the language 'may' in Penal Code section 1170, subdivision (d)(1) makes the recall of sentence permissive, not mandatory.
relied: People v. Gibson (2016) 2 Cal.App.5th 315 — Establishes that the standard of review for a trial court's decision on a DCR recommendation to recall sentence is abuse of discretion.
relied: People v. Delson (1984) 161 Cal.App.3d 56 — Holds that a trial court is not required to hold a hearing on a DCR recommendation to recall a sentence.
relied: People v. Frazier (2020) 2020 WL 6041867 — Holds that a defendant has no due process right to an attorney when the DCR recommends recall and resentence, and summary denial without a hearing or counsel is permissible.
relied: People v. McCallum (2020) 2020 WL 5810212 — Holds that while there is no due process right to a hearing, a trial court abuses its discretion if it does not give the defendant an opportunity to present information relevant to the DCR's recommendation.
relied: People v. Stamps (2020) 9 Cal.5th 685 — Holds that a court cannot whittle down a negotiated sentence while leaving the plea bargain intact; if the sentence is modified, the plea bargain must be withdrawn.
relied: People v. Lee (2017) 16 Cal.App.5th 861 — Establishes the presumption that a trial court exercised its discretion properly when the record is silent on the reasons for its decision.
relied: In re Estrada (1965) 63 Cal.2d 740 — Establishes that ameliorative statutory amendments apply retroactively only to judgments that are not yet final.
relied: People v. Brown (2012) 54 Cal.4th 314 — Reaffirms that amended statutes apply to defendants whose judgments are not yet final on the statute's operative date.

The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard to the permissive statute and distinguishes the unpublished McCallum case based on the lack of notice and counsel in the current record. It accurately cites binding authority regarding the retroactivity of ameliorative amendments to explain why the prison prior enhancement amendment did not apply.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The trial court took "no action" on a December 2019 letter from the Secretary of the Department of Corrections and Rehabilitation recommending that defendant's 16-year negotiated sentence be recalled under Penal Code section 1170, subdivision (d) so the court could exercise newly conferred discretion to strike a five-year serious-felony enhancement. On a Wende appeal, the Court of Appeal held the statute is permissive, no hearing or counsel was required, the summary denial was not an abuse of discretion, the later amendment to the prison-prior enhancement did not apply because the judgment was final, and it affirmed.

Ruling reviewed	Standard	The court	The model
Trial court's summary decision to take "no action" on the CDCR Secretary's section 1170(d)(1) recommendation to recall and resentence “The court did not abuse its discretion in taking no action on the recommendation here.”	abuse of discretion	correct	unsure Under the law as it stood in 2020, section 1170(d)(1) was permissive and Gibson, Delson, and Frazier supported summary denial without a hearing, so the result is defensible. But the record is entirely silent as to whether the trial court understood that the point of the recommendation was that it now had discretion it lacked in 2014; the court relied on the presumption of regularity from Lee to fill that gap, and the Stamps observation about the plea bargain is dicta that does not establish the trial court actually weighed anything. The distinction of McCallum, which found an abuse of discretion where the defendant had no chance to present information, is thin given the court's own acknowledgment that defendant here had no notice at all.
No hearing, notice, or appointed counsel was required before the trial court acted on the CDCR recommendation “The McCallum finding of an abuse of discretion was specific to that case and did not state a broader rule applicable here.”	de novo	correct	unsure Delson, McCallum, and Frazier do hold there is no statutory or due process right to a hearing or counsel on a section 1170(d) recommendation, so the legal statement is supported. The court's reason for declining to follow McCallum's abuse-of-discretion holding, that it would be "impractical" without notice and counsel, is a policy judgment rather than a legal distinction, and the court concedes defendant received no notice and neither the public defender nor the prosecutor was present. Whether McCallum was correctly confined to its facts is a genuine conflict the court resolved without much analysis.
Defendant could not benefit from the 2020 amendment to section 667.5, subdivision (b) eliminating his one-year prison prior enhancement because his judgment was final in 2014 “Defendant is not entitled to the benefit of this ameliorative amendment because his sentence was final in 2014, well before enactment of the amendment.”	de novo	correct	agree with court Estrada and Brown correctly state that ameliorative amendments apply only to judgments not yet final, and defendant's judgment was long final, so the conclusion is correct as a stand-alone retroactivity claim. The opinion does not address that, had the court recalled the sentence under section 1170(d)(1), it would have resentenced "as if he or she had not previously been sentenced" and could have applied current law, which is a reason the recall decision mattered; this is a gap in the analysis but not an error in the ruling as framed.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate court independently reviews the record when appointed counsel files a brief identifying no arguable issues.
relied: People v. Gibson (2016) 2 Cal.App.5th 315 — Section 1170(d)(1) is permissive and a trial court's decision on a recall recommendation is reviewed for abuse of discretion.
relied: People v. Humphrey (2020) 44 Cal.App.5th 371 — Section 1170(d)(1) uses "may" and does not require the court to recall a sentence on the CDCR's recommendation.
relied: People v. Delson (1984) 161 Cal.App.3d 56 — The trial court is not required to hold a hearing on a Director's recommendation to recall a sentence.
relied: People v. McCallum (2020) 55 Cal.App.5th 202 — No statutory or due process right to a hearing on a CDCR recall recommendation, but the trial court abused its discretion by not allowing the defendant an opportunity to present relevant information before ruling.
relied: People v. Stamps (2020) 9 Cal.5th 685 — A court may not strike a serious-felony enhancement under Senate Bill 1393 while leaving the rest of a negotiated plea bargain intact.
relied: People v. Lee (2017) 16 Cal.App.5th 861 — On a silent record the trial court is presumed to have properly exercised its sentencing discretion.
relied: In re Estrada (1965) 63 Cal.2d 740 — Ameliorative sentencing amendments apply retroactively only to judgments not yet final.
relied: People v. Brown (2012) 54 Cal.4th 314 — Amended statutes reducing punishment apply to defendants whose judgments are not final on the operative date.
relied: People v. Garcia (2018) 28 Cal.App.5th 961 — Senate Bill 1393, effective January 1, 2019, gave trial courts discretion to strike the section 667(a) serious-felony enhancement.
relied: People v. Beckemeyer (2015) 238 Cal.App.4th 461 — Prior published opinion in this case setting out the stipulated factual basis for the plea.
missed: People v. Loper (2015) 60 Cal.4th 1155 — An order denying recall and resentencing on a CDCR recommendation under section 1170(e)/(d) is an appealable postjudgment order affecting the defendant's substantial rights; the court did not address appealability before reaching the merits.
missed: People v. Buycks (2018) 5 Cal.5th 857 — When a sentence is recalled and the defendant is resentenced, the full resentencing rule applies and the court applies the law in effect at resentencing; relevant to the court's statement that defendant could not benefit from the section 667.5(b) amendment.

The appellate opinion: sound with gaps — The opinion correctly identifies section 1170(d)(1) as permissive, applies the abuse-of-discretion standard with supporting authority, and reaches a result consistent with Frazier and the law as it stood in 2020. It leaves gaps by distinguishing McCallum on practicality grounds rather than legal ones despite conceding defendant had no notice, by relying on a silent-record presumption where the recommendation's entire premise was a change in the court's discretion, and by not noting that a recall would have permitted full resentencing under current law including the amended prison-prior statute.

How this analysis was made · dispute it

Opinion

Filed 10/28/20 P. v. Beckemeyer CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077262

Plaintiff and Respondent, v. (Super. Ct. No. SCE317734)

JOHN ROBERT BECKEMEYER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed.

Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. We find no error in this appeal filed pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). BACKGROUND The parties stipulated to the preliminary hearing transcript as the factual basis for defendant’s plea in the original appeal in this case: People v. Beckemeyer (2015) 238 Cal.App.4th 461.1 Based on the preliminary hearing, defendant and Linda Ann M. began dating in December of 2011. That relationship ended on January 8, 2012, because Linda felt defendant was extremely controlling and jealous. Linda did not allow defendant to enter her house any longer. However, on January 12, 2012, defendant did come to her house, and confronted her in the bathroom. Defendant refused to leave. He hit her on the head with his fist, knocked her down, repeatedly hit her head on the floor, pulled her hair out of her head, and tried to choke her; stating as he did so, “If I can’t have you, nobody’s going to want you.” When Linda’s adult son came into the bathroom to stop the assault, defendant assaulted him. Defendant knocked down the son, hit him repeatedly with a cane and a rock, and tried to stab him with the sharp metal jagged edge of the cane. Defendant then assaulted Linda again. Officers responding to a 911 call subdued and arrested defendant. (Beckemeyer, at pp. 463–464.) On April 29, 2013, a seven-count information was filed against defendant by the San Diego County District Attorney. The information alleged attempted murder (Pen. Code,2 §§ 664/187; count 1), felony assault (§ 245, subd. (a)(1); count 2), two counts of felony assault with an allegation of personal use of a deadly weapon (§§ 245, subd. (a)(1), 1192.7 subd. (c)(23); counts 3 & 4), criminal threat (§ 422; count 5), dissuading a witness (§ 136.1, subd. (a)(2); count 6), and resisting an officer (§ 69; count 7). Five prison priors were alleged. (§ 667.5, subd. (b).) One strike prior (§ 667, subds. (b)- 1 The judgment below and the notice of appeal spell the defendant’s name as “Beckmeyer.” Defendant, John Robert Beckemeyer, has signed his name as “Beckemeyer.” We use defendant’s spelling of his name.”

2 Further statutory references are to the Penal Code. 2 (i)) was alleged and one serious felony prior allegation (§ 667, subd. (a)) was added by interlineation. The parties entered a negotiated plea on June 3, 2013. Defendant pleaded guilty to count 1, attempted murder, and count 3, felony assault with an admission he used a deadly weapon. He also admitted he suffered one strike prior, one prison prior, and one serious felony prior. In exchange, the People dismissed the balance of the information. Sentencing was left to the discretion of the court, who indicated defendant would receive 16 years in prison. On January 28, 2014, defendant was sentenced to 16 years in prison calculated as follows: count 1, the low term of five years, doubled by the strike prior to 10 years; count 3, the low term of two years doubled by the strike prior to four years, stayed per section 654; plus an additional five years for the serious felony prior, and one year for the prison prior. On December 19, 2019, the court took “no action” on a letter written from the Secretary of the Department of Corrections and Rehabilitation (DCR) recommending defendant be resentenced pursuant to section 1170, subdivision (d). When defendant was sentenced, imposition of a five-year enhancement for a prior serious felony conviction was mandatory. The Legislature amended this law, effective January 1, 2019, giving courts discretion to strike the prior serious felony enhancement. (See People v. Garcia (2018) 28 Cal.App.5th 961, 971.) DCR recommended that defendant’s sentence be recalled for the court to exercise its discretion under the amended law. Defendant filed a timely notice of appeal from the court’s denial of relief. We have reviewed the record and the potential issues to which counsel and defendant have pointed us. Section 1170, subdivision (d)(1) provides that the Secretary of the DCR can recommend that a court recall a defendant’s 3 sentence in identified circumstances. It states in part that the trial court “may, . . . upon the recommendation of [certain officials including the secretary of the DCR] recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced . . . .” (§ 1170, subd. (d)(1), italics added.) The statute is clearly permissive, not mandatory—it uses the verb “may,” not “shall.” (Ibid.; People v. Humphrey (2020) 44 Cal.App.5th 371, 377 (Humphrey); People v. Gibson (2016) 2 Cal.App.5th 315, 324 (Gibson); People v. Delson (1984) 161 Cal.App.3d 56, 62 (Delson).) The court is not required to hold a hearing on the DCR’s recommendation. (Delson, at p. 61; People v. Frazier (Oct. 13, 2020, B300612) __ Cal.App.5th __ [2020 WL 6041867]; People v. McCallum (Sept. 30, 2020, B301267) __ Cal.App.5th __ [2020 WL 5810212, *7] [no statutory or due process right to hearing on whether to recall] (McCallum).) Defendant has no due process right to an attorney when the DCR recommends recall and resentence. (Frazier, at p. 4.) We review the trial court’s decision on DCR’s recommendation to recall for an abuse of discretion. (Gibson, supra, 2 Cal.App.5th at p. 324.) If the court had decided to strike the five-year enhancement, the plea bargain would have had to be withdrawn, as a court cannot whittle down a negotiated sentence while leaving the plea bargain intact. (People v. Stamps (2020) 9 Cal.5th 685, 706.) When the record is silent we presume the court exercised its discretion properly. (People v. Lee (2017) 16 Cal.App.5th 861, 867.) The court did not abuse its discretion in taking no action on the recommendation here. The Second District has recently held that a defendant has no due process right to a hearing in response to a recommendation from DCR, but that the trial court abused its discretion in not giving the defendant an 4 opportunity to present information relevant to DCR’s recommendation before the court made its order. (McCallum, supra, 2020 WL5810212, pp. *7–8.) We find the McCallum rule impractical, however, unless the defendant has notice of the hearing and counsel to assist in marshalling evidence in support of the recommendation. The defendant here had no notice of the recommendation. The DCR letter to the court was copied to the Public Defender and the district attorney only. The court summarily decided to take no action on the recommendation without the presence of either a public defender or a deputy district attorney. A hearing is not required on a recommendation from the DCR. (McCallum, at p. *7.) Counsel is not required, either, and summary denial of a recommendation from the DCR without a hearing or counsel has been upheld in Frazier, supra, 2020 WL 6041867 at pages 1 and 6. The McCallum finding of an abuse of discretion was specific to that case and did not state a broader rule applicable here. We also note that the prison prior enhancement was amended in 2019 such that it would no longer be applicable to defendant. As of January 1, 2020, section 667.5, subdivision (b) provides in relevant part, “[W]here the new offense is any felony for which a prison sentence . . . is imposed . . . , in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . .” Defendant is not entitled to the benefit of this ameliorative amendment because his sentence was final in 2014, well before enactment of the amendment. Penalty assessments are applied retroactively only to judgments not final. (In re Estrada (1965) 63 Cal.2d 740, 745–748 [penalty reductions applied retroactively only to judgments not yet final]; People v. Brown (2012) 54 Cal.4th 314, 323 [amended statutes apply to 5 defendants whose judgments are not yet final on the statute’s operative date].) We have independently reviewed the record in full and conclude there are no issues that would result in modification or reversal. Defendant is represented by competent counsel on this appeal. DISPOSITION The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

GUERRERO, J.

Cites, in this corpus

People v. Stamps S255843 · 2020-06-25
People v. Gibson E062624 · 2016-08-10
People v. Beckemeyer CA4/1 D065565 · 2015-06-05
People v. Brown S181963 · 2012-06-18
People v. Delson Crim. 44539 · 1984-10-23
People v. Wende Crim. 20851 · 1979-10-12
In Re Estrada Crim. 8524 · 1965-12-23