People v. Salinas CA2/1

Filed 10/29/26 P. v. Salinas CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B347777 Plaintiff and Respondent, (Los Angeles County v. Super. Ct. No. VA146885) GEORGE ANTHONY SALINAS, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Debra Cole-Hall, Judge. Reversed with directions. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent. _______________________  In 2018, defendant and appellant George Anthony Salinas struck an elderly man in the head with a bag containing a full 24- ounce beer can. He agreed to a plea bargain in which he pleaded no contest to one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 and the trial court sentenced him to 12 years in prison. The sentence consisted of the low term of two years for assault with a deadly weapon, doubled because Salinas had suffered a prior strike conviction for criminal threats (§§ 422, 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus three years for infliction of a great bodily injury (§ 12022.7, subd. (a)), plus five more years for a prior conviction for a serious felony (which was the same criminal threats conviction constituting his prior strike). (§ 667, subd. (a)(1).) On August 21, 2024, the Department of Corrections and Rehabilitation (CDCR) recommended, pursuant to section 1172.1, that the trial court recall Salinas’s sentence and resentence him based on recent changes in the law giving courts discretion to strike five-year serious felony enhancements under section 667, subdivision (a)(1), as well as the nature of the offense and Salinas’s conduct in prison. After a hearing, the court declined to recall Salinas’s sentence and grant him a resentencing hearing on the ground that he currently posed an unreasonable risk of committing one of a handful of extremely serious crimes sometimes referred to as super strikes. (§ 1172.1, subd. (b)(2); see also § 1170.18, subd. (c).) Super strikes include sexually violent offenses, other sexual offenses involving victims under age 14, homicide, solicitation to murder, assault with a machinegun on a peace officer or firefighter, possession of a weapon of mass 1 Unspecified statutory references are to the Penal Code. 2 destruction, and offenses punishable by life imprisonment or death. (See § 667, subd. (e)(2)(C)(iv)(I)-(VIII).) As support for its determination that Salinas was likely to commit such an offense, the court noted his criminal history and found, based on information in Salinas’s central file, that he “continues to not follow rules, be disruptive, get in fights and has not been involved in any self-help programming.” Salinas appeals from that ruling, arguing that the trial court abused its discretion by denying him a resentencing hearing. We agree. Section 1172.1 sets forth “a presumption favoring recall and resentencing” (id., subd. (b)(2)), and allows a trial court to deny a resentencing hearing only if it finds there is an unreasonable risk that the defendant will commit a new super strike. (People v. Braggs (2022) 85 Cal.App.5th 809, 818 & fn. 5.) Although Salinas has a lengthy criminal history, nothing in the record suggests he is likely to commit one of these few most serious offenses. That does not mean Salinas is entitled to a reduced sentence, but it does mean the court erred in denying him a resentencing hearing where he could make a full presentation asking for one. We also agree with Salinas that the appeal is not moot even though he has already been released on parole. Accordingly, we reverse the trial court’s order denying resentencing. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS In its letter recommending resentencing, CDCR included a case summary and evaluation report describing Salinas’s conduct in the current case, as well as his prior history and conduct in prison. CDCR noted that “Salinas swung a black plastic bag with a 24-ounce unopened . . . beer can inside to strike the victim in the back of the head. The victim sustained a two-to-three-inch 3 laceration to the back of his head. . . . [¶] While being transported to the police department, Salinas was very belligerent and uncooperative with officers, refusing to answer questions from the medical and booking forms. Salinas emitted a strong odor of alcohol.” CDCR listed eight criminal convictions in Salinas’s history, dating from 1993 to 2017, including one conviction for first degree burglary (§ 459) in 1994. The other convictions were for grand theft (§ 487.1), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), possession of a dangerous weapon (§ 12020, subd. (a)), disorderly conduct involving intoxicating drugs or alcohol (§ 647, subd. (f)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and, on two different occasions, criminal threats (§ 422). The CDCR noted that none of the prior offenses involved violence against people. Salinas’s record also indicated that he had absconded from parole six times between 1998 and 2015. Salinas was found to have violated rules twice while serving his current sentence, once for fighting in 2022 and once for theft of state property. He had also received disciplinary reports for disobeying an order, failing to meet program or work expectations, and disrespect. On the other hand, Salinas received above average and satisfactory grades for his performance as a janitor in prison, and had made satisfactory progress in educational and mental health programs. He had not completed any of the self-help programs, however. Salinas was housed in a substance abuse treatment facility, and his classification placement score was zero, the lowest level of security. The People filed an opposition to resentencing Salinas, arguing that he remained a risk to public safety because his 4 current offense was serious, he had frequently absconded from parole in the past, he had made insufficient progress toward addressing his substance abuse issues, and he had no apparent family support or re-entry plan following his release. Salinas filed a memorandum in support of his request for a resentencing in which he argued that he had made significant progress toward rehabilitation. He had been unable to read or write when he began his sentence, but he enrolled in a GED program. In addition, he had requested to be removed from the general prison population because he had dropped out of a prison gang. Salinas also emphasized his low security placement score and his relative lack of disciplinary actions. Finally, he pointed out he was 54 years old, and that older offenders are less prone to recidivism. After a hearing, the trial court found “Salinas is likely to commit a super strike” and thus “decline[d] to use [its] discretion to recall . . . his sentence to strike the five-year enhancement.” The court explained that Salinas “already had a strike” when he committed the current offense, when he took “a bag with beer in it and hit[ ] a 73-year-old man on the head with it, causing lacerations. That person could have died. . . . [H]e is violent. So I think that, yes, he is a candidate for committing a super strike.” The court continued, “I don't have a crystal ball. I hope I’m wrong, and that if he is released in December, like he says, that he does not continue on with his criminal behavior. But his behavior in prison, I think, shows that he was disruptive in 2024; there was theft and a fight in 2022. So it’s not as though he’s been in prison for the time that he has been there and he has shown that he can follow rules and laws.” 5  DISCUSSION A. The Appeal Is Not Moot The People contend we should dismiss this appeal as moot because Salinas has been released on parole.2 We disagree. An appeal becomes moot if “ ‘ “without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [defendant], to grant him any effectual relief whatever.” ’ ” (People v. DeLeon (2017) 3 Cal.5th 640, 645.) As a parolee, Salinas is subject to significant restrictions on his liberty. For example, he may not travel more than 50 miles from his residence without his parole agent’s permission (Cal. Code Regs., tit. 15, § 2512, subd. (a)(3)), and he is subject to search or seizure by any peace officer at any time without warrant. (§ 3067, subd. (b)(3).) This appeal could potentially lead to a reduction in Salinas’s sentence, which would in turn grant him effectual relief by “reduc[ing] or terminat[ing] his period of parole.”3 (People v. Washington (2026) 117 Cal.App.5th 1057, 1069.) 2 At the resentencing hearing, Salinas’s attorney informed the court that her client would be eligible for parole in December 2025. The appellate attorney for Salinas has acknowledged his release. The clerk of this court contacted CDCR, which confirmed that Salinas was paroled on December 1, 2025. His parole will terminate no earlier than December 1, 2026. (See § 3000.01, subd. (b)(1).) 3 If the trial court had recalled Salinas’s sentence, it could have reduced his aggregate sentence from 12 years to seven years by striking the five-year enhancement under section 667, subdivision (a)(1) at resentencing. Salinas almost certainly has earned more than seven years of credit before his release on 6  In support of their argument that the appeal is moot, the People rely primarily on Spencer v. Kemna (1998) 523 U.S. 1 [118 S.Ct. 978, 140 L.Ed.2d 43] and People v. DeLeon, supra, 3 Cal.5th 640, but in both of those cases, the defendant had already finished serving his sentence and was no longer on parole. (Spencer, supra, 523 U.S. at p. 6; DeLeon, supra, at p. 646.) The courts held that in those circumstances, a challenge to a trial court’s decision to revoke parole was moot. (Spencer, supra, at pp. 14-15; DeLeon, supra, at pp. 645-646.) That reasoning has no application here, where Salinas remains on parole. B. No Substantial Evidence Supported the Trial Court’s Finding that Salinas is Likely to Commit a Super Strike Upon Release 1. Legal Background and Standard of Review CDCR has long had the authority to recommend inmates in its custody to the trial court for resentencing. (Former § 1170, subd. (d); Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Such a recommendation gives the trial court the authority “to ‘resentence . . . in the same manner as if [the defendant] had not previously been sentenced . . . .’ ” (Dix, supra, at p. 456, italics omitted, quoting former § 1170, subd. (d).) This means the court can “impose any otherwise lawful resentence suggested by the facts available at the time of resentencing,” so long as the new sentence was not longer than the original one. (Dix, supra, at p. 456.) Under the former version of the statute, however, the parole: He was in custody from his July 2018 sentencing until his release in December 2025, and at his original sentencing in July 2018, the court awarded him an additional 192 days in custody credit. 7 court was not required to resentence the defendant, or even “to respond to the recommendation.” (Id. at p. 459, fn. omitted.) In 2021, the Legislature enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.) which, in recognition of “the scrutiny that has already been brought to these referrals by the referring entity” (Stats. 2021, ch. 719, § 1(h)), forbade courts from ignoring recommendations for recall and resentencing. Under the new version of the law, codified initially at section 1170.03 and subsequently renumbered as section 1172.1, when the trial court receives a recommendation for resentencing, it must notify and appoint counsel to represent the defendant, and must set a status conference within 30 days. (Id., subd. (b)(1).) Following this notification, the statute sets forth a two-step process. The first step imposes a procedural gate on whether the defendant is eligible for recall and resentencing. Only if the defendant passes that initial eligibility test does the matter proceed to the second step, which is the resentencing hearing itself. With regard to the first step, section 1172.1 creates “a presumption favoring recall and resentencing of the defendant, which may only be overcome if [the trial] court finds the defendant currently poses an unreasonable risk of danger to public safety, as defined in subdivision (c) of [s]ection 1170.18.” (Id., subd. (b)(2).) “Subdivision (c) of section 1170.18 in turn defines an unreasonable risk of danger to public safety as ‘an unreasonable risk that the [defendant] will commit a new violent felony within the meaning of [section 667, subdivision (e)(2)(C)(iv)].’ This ‘subdivision of section 667 identifies eight types of particularly serious or violent felonies, known colloquially as “super strikes.” ’ ” (People v. Braggs, supra, 85 Cal.App.5th at p. 818.) In sum, CDCR’s recommendation creates 8 a presumption in favor of a resentencing hearing unless the court finds the defendant currently poses an unreasonable risk of committing a super strike. To support a finding of dangerousness under this standard, the evidence must show “more than ‘a generalized concern about [the defendant’s] “ability to continue to commit crimes.” ’ ” (People v. Lewis (2024) 101 Cal.App.5th 401, 410.) Instead, the inquiry must focus on “the likelihood the defendant will commit a limited subset of violent felonies.” (People v. Moine (2021) 62 Cal.App.5th 440, 450.) The court’s finding must be based on supporting evidence, not speculation or the arguments of counsel. (People v. Saelee (2018) 28 Cal.App.5th 744, 754-755.) In addition, “the proper focus is on whether the [defendant] currently poses an unreasonable risk of danger to public safety,” not merely whether he did at the time of his conviction. (People v. Buford (2016) 4 Cal.App.5th 886, 913.) “The court shall state on the record the reasons for its decision to grant or deny recall and resentencing.” (§ 1172.1, subd. (a)(7).) If the court elects to deny resentencing, it must first hold “a hearing where the parties have an opportunity to address the basis for the intended denial or rejection.” (Id., subd. (a)(9).) If the defendant passes this initial eligibility test, the court then proceeds to resentence the defendant, “apply[ing] the sentencing rules of the Judicial Council and apply[ing] any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.1, subd. (a)(2).) At this point in the proceedings “the sentence ultimately imposed by the court is left to its discretion without any further application of the [initial gating] presumption.” (People v. Braggs, supra, 85 9 Cal.App.5th at p. 820.) The court is to “resentence the defendant in the same manner as if they had not previously been sentenced, . . . provided the new sentence, if any, is no greater than the initial sentence.” (§ 1172.1, subd. (a)(1).) We review the trial court’s denial of recall and resentencing for abuse of discretion. (People v. E.M. (2022) 85 Cal.App.5th 1075, 1082.) We review the factual findings underlying the decision, such as whether a defendant poses an unreasonable risk of danger to public safety as defined in section 1170.18, subdivision (c) for substantial evidence. (People v. Lewis, supra, 101 Cal.App.5th at p. 409.) 2. Analysis There is substantial evidence supporting many of the trial court’s concerns regarding Salinas. Over 25 years from 1993 to 2018, he was convicted of nine offenses, including two serious or violent felony counts of first degree burglary (§§ 459, 667.5, subd. (c)(21), 1192.7, subd. (c)(18)) and criminal threats (§§ 422, subd. (a), 1192.7, subd. (c)(38)). During the same time frame, he also absconded from parole six times. His record also suggests a lengthy history of misusing drugs and alcohol, including a 1993 conviction for possession of narcotics and two more offenses involving intoxication in 2015. According to the People, his central prison file indicates he was addicted to alcohol, amphetamines, and cocaine when he entered custody for the current offense. There is also substantial evidence supporting the trial court’s finding that there is a serious risk that Salinas will return to his old ways upon release from prison. Although his prison record reveals no misconduct more serious than participating in a fight, it does not compel the conclusion that Salinas has turned his life around. 10  But when the trial court receives a letter recommending resentencing from CDCR, the relevant question is not whether the defendant is likely to recidivate, but whether he is “ ‘likely to commit a super-strike offense.’ ” (People v. Moine, supra, 62 Cal.App.5th at p. 450.) The list of super-strike offenses is narrow. As previously noted, it includes sexually violent offenses, other sexual offenses involving victims under age 14, homicide, solicitation to murder, assault with a machinegun on a peace officer or firefighter, possession of a weapon of mass destruction, and offenses punishable by life imprisonment or death. (See § 667, subd. (e)(2)(C)(iv)(I)-(VIII).) Salinas, despite his numerous prior convictions, has never been charged with an offense in any of these categories. His current conviction for assault with a deadly weapon causing great bodily injury appears to be his only offense involving violence. We do not mean to diminish the seriousness of this offense, in which Salinas employed a bag containing a beer can as a weapon and caused a head injury to an elderly man. But the record does not show Salinas was attempting to kill the victim. Nor are his prior convictions on the level of super strikes, or of an increasing level of severity over time that suggests he is likely to commit a super-strike. Salinas’s 1994 conviction for burglary appears to have resulted from an incident in which Salinas came in through the window of a sleeping neighbor’s trailer. The neighbor awoke and confronted Salinas, who spoke with Salinas and did not realize at first that Salinas had stolen some of his possessions. In 2002, Salinas was convicted of criminal threats after being kicked out of a fast-food restaurant, then telling the manager he was going to wait outside and stab him. Nothing in the record indicates Salinas was armed with a knife or attempted to carry 11 out his threat. Salinas did not comply with parole terms, but as the People noted those violations appear to have involved absconding from supervision as opposed to the commission of new offenses. In short, even if Salinas does return to his old ways upon his release, there is no substantial evidence that he is likely to commit a super-strike offense. Because there is insufficient evidence to overcome the presumption in favor of recall and resentencing, the trial court abused its discretion by rejecting CDCR’s recommendation. The trial court’s error in not holding a resentencing hearing had practical consequences in depriving Salinas of an opportunity to offer a statement in mitigation (Cal. Rules of Court, rule 4.437), to testify on his own behalf (People v. Evans (2008) 44 Cal.4th 590, 598-600), and to present other information as of the resentencing hearing date regarding the appropriate sentence. The court’s statements at step one indicate that it was unlikely to reduce Salinas’s sentence, but we can only speculate if the court would have felt the same after reviewing a full resentencing record which was never developed. “Significantly, the People do not argue” that we should apply the People v. Watson (1956) 46 Cal.2d 818, 836 standard (People v. Craig (2026) 117 Cal.App.5th 1165, 1178), or make any other argument regarding harmless error. We thus conclude the error was not harmless. (Cf. People v. Salazar (2023) 15 Cal.5th 416, 425 [the Watson standard for judging harmless error does not apply when it “does not properly take into consideration the ‘more speculative inquiry’ of what choice the court is likely to make in the first instance” at resentencing].) 12  To be clear, nothing in this opinion restricts the trial court’s discretion upon remand in resentencing Salinas or implies that he is entitled to a reduced sentence. Although the court now has discretion it lacked at the time of Salinas’s original sentencing hearing to strike five-year enhancements under section 667, subdivision (a)(1), it is not required to do so. (People v. Stamps (2020) 9 Cal.5th 685, 707 [“If the court on remand declines to exercise its discretion under section 1385 [to strike an enhancement], that ends the matter and [the] defendant’s sentence stands”].) The legislative history of Assembly Bill No. 1540 states that upon resentencing, “ ‘a court would not necessarily impose a lower sentence if the court did not otherwise feel that one was appropriate (unless a change in law from the time of the original sentence mandated a lower sentence).’ (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1540 (2021-2022 Reg. Sess.) as amended Apr. 22, 2021, p. 6 . . . .)” (People v. Braggs, supra, 85 Cal.App.5th at p. 820, italics omitted.) Although a presumption favors granting recall and resentencing in the first place, “the sentence ultimately imposed by the court is left to its discretion without any further application of the presumption.” (Ibid.) 13  DISPOSITION The trial court’s order is reversed. The trial court shall issue an order recalling Salinas’s sentence and shall then resentence him pursuant to section 1172.1. If Salinas has successfully completed his parole by the time of the resentencing hearing, the court may dismiss the request for resentencing as moot. NOT TO BE PUBLISHED WEINGART, J. We concur: BENDIX, Acting P. J. M. KIM, J. 14