Error and/or relief
The court erred in concluding that the defendant was not eligible for recall of sentence under section 1172.75 because he is serving a term of life without the possibility of parole (LWOP). The prohibition applies only to those who are service an LWOP sentence as a result of conviction of specified sex offenses. It does not apply to those serving an LWOP sentence for other offenses. The language of the exclusion is conjunctive, not disjunctive. [Gary note: REVIEW HAS BEEN GRANTED IN THIS CASE AND HELD PENDING DIXON.]
First Holding:
As of January 1, 2025, 1172.75(f) provides that an individual who has been convicted of a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section.
Authority:
PEN 1172.75(f)
Second Holding:
This is a question of statutory interpretation that we review de novo.
Authority:
Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40
Third Holding:
When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation. We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided. The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.
Authority:
Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561
Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330
People v. Rhodius (2025) 17 Cal.5th 1050, 1057
Fourth Holding:
Subsequent to defendant’s original sentencing, SB 136 (2019–2020 Reg. Sess.) amended section 667.5(b) to allow for the imposition of one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, the Legislature added section 1172.75, which provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense, is legally invalid. It also provided a process for recall of sentences rendered invalid and resentencing of affected defendants.
Authority:
PEN 1172.75
Fifth Holding:
Resentencing pursuant to section 1172.75 entitles a defendant to a full resentencing, including application of the rules of the Judicial Council and application of any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Resentencing pursuant to section 1172.75 must “result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In no circumstance can resentencing result in a longer sentence than the one originally imposed.
Authority:
PEN 1172.75
People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]
Sixth Holding:
Effective January 1, 2025, SB 285 amended section 1172.75 to add subdivision (f). Subdivision (f) provides: “Commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c) [of section 1172.75], is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively.”
Authority:
PEN 1172.75(f)
Seventh Holding:
The ordinary and usual usage of “and” is as a conjunctive, meaning “an additional thing, “also” or “plus.” By contrast, use of the word “or” in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories. But the word “and” is not always to be taken conjunctively. It is sometimes, in a fair and rational construction of a statute, to be read as if it were “or,” and taken disjunctively.
Thus, courts will sometimes substitute “or” for “and,” and vice versa, when necessary to accomplish the evident intent of the statute, but doing so is an exceptional rule of construction. Thus, for example, a court may substitute “or” for “and” to correct a drafting error where it appears clear that a word has been erroneously used, and a judicial correction will best carry out the intent of the adopting body. Additionally, a court may substitute “or” for “and” to avoid a construction of the statute that would make some words surplusage.
Authority:
People v. Reynoza (2024) 15 Cal.5th 982, 990–991
In re C.H. (2011) 53 Cal.4th 94, 102–103, superseded by statute on another ground as stated in In re Edward C. (2014) 223 Cal.App.4th 813, 824
(GARY NOTE: AS CAN BE READ IN THE SIMILAR CASE THAT WAS PUBLISHED THIS DATE, the court engaged in examining how the Legislature used “or” in other parts of the section where “or” was clearly intended, and “and” similarly. It was clear to this court that the Legislature was aware of the difference and that it intended to mean exactly what it said–the exclusion applies to a person who was sentenced to LWOP because of specified sexual offenses. The legislative history revealed that the amendment was in response to the impact of section 1172.75 on the sentence of a notorious defendant convicted of murder and sexual offenses for which he received death sentence several decades earlier. It also noted Dixon (in which review has been granted), which concluded that nothing in section 1172.75 excluded individuals under a judgment of death.
(People v. Dixon (2025) 112 Cal.App.5th 236, 247, review granted Oct. 22, 2025, S292223 The issues on review in the Supreme Court in Dixon are described as: (1) May a superior court modify a death judgment under the recall and resentencing procedure in Penal Code section 1172.75? (2) Did the Court of Appeal err in holding that the exclusivity provision of Penal Code section 1509 precludes modification of a death judgment under Penal Code section 1172.75? (3) Did the superior court have jurisdiction to resentence defendant pursuant to Penal Code section 1172.75 when his appeal was pending before this court?
(People v. Robinson (2026) 120 Cal.App. 5th 516 (F089332, filed 5/8/2026) but review was granted in the published decision on 7/16/26, granted and held pending Dixon S292223)