Unreported / Non-Citable
Background
George Anthony Salinas pleaded no contest in 2018 to one count of assault with a deadly weapon after striking a 73-year-old man in the head with a plastic bag containing a full 24-ounce beer can, causing a two-to-three-inch laceration. The superior court sentenced him in July 2018 to 12 years in prison: the two-year low term for the assault, doubled under the Three Strikes law because of a prior criminal-threats strike conviction, plus three years for infliction of great bodily injury and five years for a prior serious felony enhancement based on that same criminal-threats conviction.
On August 21, 2024, the Department of Corrections and Rehabilitation recommended under Penal Code section 1172.1 that the court recall Salinas's sentence and resentence him, citing recent legislation giving courts discretion to strike five-year serious-felony enhancements, the nature of the offense, and Salinas's prison conduct. After a hearing, the superior court declined to recall the sentence or grant a resentencing hearing, finding that Salinas currently posed an unreasonable risk of committing a super-strike offense, relying on his criminal history and central-file entries describing disruptive behavior, fighting, theft, and no self-help programming. The record also showed favorable factors: above-average janitor performance, satisfactory educational and mental-health progress, a zero classification score, and no prior offense in any super-strike category. Salinas appealed, and the People argued the appeal was moot because he had been released on parole.
The Court’s Holding
The Second District Court of Appeal, Division One, held the appeal was not moot. Salinas was paroled on December 1, 2025, with parole running no earlier than December 1, 2026, and as a parolee he remained subject to significant liberty restrictions; a reduced sentence could reduce or terminate his parole, granting effectual relief. The court distinguished authorities involving defendants who had completed both sentence and parole. On the merits, the court explained that a CDCR recommendation under section 1172.1 creates a presumption favoring recall and resentencing, which the trial court may overcome only by finding, based on evidence rather than speculation, that the defendant currently poses an unreasonable risk of committing one of the eight narrowly defined super-strike offenses. General concerns about recidivism are not enough. The denial is reviewed for abuse of discretion, with underlying dangerousness findings reviewed for substantial evidence.
Although the record supported concerns that Salinas might return to earlier behavior, the court found no substantial evidence he was likely to commit a super strike. His current assault appeared to be his only violent offense, the record did not show an attempt to kill, and his prior convictions neither qualified as super strikes nor showed escalating severity toward that category. The error was not harmless because denying the hearing deprived Salinas of the chance to testify, present mitigation, and develop a full resentencing record, and the People offered no harmless-error argument. The court reversed the trial court's order and directed it to issue an order recalling Salinas's sentence and to resentence him under section 1172.1, while expressly preserving the trial court's discretion on remand to impose any lawful sentence no greater than the original, including declining to strike the enhancement; if Salinas completes parole before the hearing, the court may dismiss the request as moot.
Key Takeaways
- A CDCR recommendation under section 1172.1 creates a presumption favoring recall and resentencing unless the court finds, on evidence, that the defendant currently poses an unreasonable risk of committing a super-strike offense.
- Substantial evidence of a general recidivism risk does not by itself support the narrower super-strike finding required to deny a resentencing hearing.
- Release on parole does not moot an appeal where a reduced sentence could still reduce or terminate the parole period.
- The reversal directs recall and resentencing but does not entitle Salinas to a lower sentence or require the court to strike the five-year enhancement.
- If Salinas completes parole before the resentencing hearing, the trial court may dismiss the resentencing request as moot.
Why It Matters
The decision cleanly separates the threshold question whether a defendant is entitled to a resentencing hearing from the discretionary question what sentence to impose. A trial court may not substitute generalized fears about future criminality for record evidence addressing the specific super-strike categories, and it must state its reasons on the record. At the same time, the opinion confirms that once a hearing is held, the presumption drops away and the ultimate sentence is left to the trial court's discretion, so long as it is no greater than the original sentence.