People v. Frazier, 55 Cal.App.5th 858

In 2007 Virginia Frazier was convicted of assault with a deadly weapon with a true great-bodily-injury enhancement and admitted multiple serious/violent priors under the Three Strikes law; she was sentenced to 23 years.
In May 2019 the Secretary of the Department of Corrections and Rehabilitation submitted a section 1170(d)(1) recommendation to the trial court seeking recall and resentencing based on Frazier’s exemplary postconviction conduct and advanced age.
On July 3, 2019 the trial court summarily declined to recall the sentence; Frazier appealed the denial.
Frazier argued the court violated due process by declining the Secretary’s recommendation without appointing counsel to represent her at that stage.
The Court of Appeal reviewed the discretionary denial for abuse of discretion and reviewed the constitutional claim de novo, and affirmed, holding that the Secretary’s recommendation alone does not trigger a due process right to appointed counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Secretary's section 1170(d)(1) recommendation triggers a due process right to appointed counsel	Frazier: the recommendation is a "critical stage"; due process requires counsel to marshal evidence and address the court	People: no Sixth Amendment right applies to postjudgment requests for relief; section 1170(d)(1) contains no statutory right to counsel	Held: No. The filing of the Secretary’s recommendation alone does not create a due process right to counsel
Whether the court abused its discretion by summarily denying the recommendation without explanation or appointing counsel	Frazier: silent record prevents meaningful appellate review and suggests arbitrary denial	People: court not required to state reasons; appellate presumption that discretion was properly exercised on a silent record	Held: No abuse shown. Presume proper exercise of discretion; court must, however, permit inmates to supplement materials if they seek to present information, and counsel/right to hearing may attach later if the court conducts an evidentiary proceeding

Dix v. Superior Court, 53 Cal.3d 442 (1991) (section 1170(d) is a limited exception to the general loss of resentencing jurisdiction once sentence execution begins)
Marshall v. Rodgers, 569 U.S. 58 (2013) (Sixth Amendment guarantees right to counsel at all critical stages up to and including sentencing)
Martinez v. Court of Appeal of Cal., Fourth App. Dist., 528 U.S. 152 (2000) (no federal constitutional right to appointed counsel on appeal, but states may impose requirements)
In re Clark, 5 Cal.4th 750 (1993) (appointment of counsel in habeas proceedings required when prima facie showing warrants issuance of an order to show cause)
Coleman v. Thompson, 501 U.S. 722 (1991) (no federal right to counsel in postconviction collateral habeas proceedings)
Pennsylvania v. Finley, 481 U.S. 551 (1987) (due process and equal protection guarantee counsel for the first appeal of right only)
People v. Rouse, 245 Cal.App.4th 292 (2016) (once sentence is recalled and a resentencing hearing occurs under statutes like Prop 47, Sixth Amendment and due process rights to counsel attach)
People v. Perez, 4 Cal.5th 1055 (2018) (retroactive statutory resentencing schemes enacted as legislative acts of lenity do not themselves implicate Sixth Amendment rights)
People v. Oehmigen, 232 Cal.App.4th 1 (2014) (due process does not require a hearing on statutory eligibility determinations for resentencing under Proposition 36)