Tag Archives: Sentencing

Appellate Principles, Duty of the court, Jurisdiction, Sentencing

Case 000625

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, we reversed on the basis that the sentence was the functional equivalent of a term of life without the possibility of parole (LWOP), and remanded for the trial court, as we specified in the remittitur, to consider the defendant’s application for resentencing under section 1170(d) as a person serving the functional equivalent of LWOP.

On remand, the trial court declined to find the defendant was serving the functional equivalent of LWOP, based on an opinion from another district subsequent to the case we relied on in our first opinion. The court had no jurisdiction to go outside the limits of our remittitur, and we remand the case to the lower court to carry out the directions in our remittitur. The matter is remanded to the trial court with the direction to find the defendant eligible for relief and to consider the merits of his petition.

First Holding:

This court has held that offenders sentenced to functionally equivalent LWOP terms are entitled to section 1170(d) relief under the constitutional guarantee of equal protection, in agreement with Heard. Another district has held otherwise.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440

People v. Heard (2022) 83 Cal.App.5th 608,

People v. Isayev (2025) 113 Cal.App.5th 1117, 1123, review granted November 12, 2025, S292860 [Holding that the availability of a youth offender parole hearing under section 3051, which requires such a hearing to be held no later than 25 years into the juvenile’s sentence, precludes finding that the juvenile has a sentence functionally equivalent to life without parole, and is thus ineligible for recall and resentencing under section 1170(d)]

Second Holding:

The remittitur both terminates the reviewing court’s jurisdiction of the case and proscribes the remaining jurisdiction of the receiving court. After the remittitur, the appellate court has no further jurisdiction of the appeal and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted.

Authority:

PEN 1265

Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned]

Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [The terms of the remittitur define the trial court’s jurisdiction to act]

Third Holding:

The trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. The order of the appellate court as stated in the remittitur, is decisive of the character of the judgment to which the appellant is entitled.

A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal. Action that does not conform to the appellate court’s directions is void. The trial court was not free to depart from the instructions in the remittitur, as the trial court must follow a remittitur even if it believes the decision was wrong or has been impaired by subsequent decisions.

Authority:

Rice v. Schmid (1944) 25 Cal.2d 259, 263

Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

Appellate Principles, Sentencing, Standard of review, Statutory interpretation

Case 000623

Posted on by Gary McCurdy

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)

Equal protection, Probation Parole PRCS, Standard of review

Case 000622

Posted on by Gary McCurdy

Error and/or relief

Defendant, age 23 at the time of the offense, was sentenced to life without the possibility of parole (LWOP). He sought a Franklin hearing to be able to present evidence that could be considered as mitigating factors related to his youth at the time of the crime in the event there is ever a parole hearing. The trial court denied the motion to conduct the hearing, on the basis that LWOP inmates will never be considered for parole. Reversed. We cannot determine whether the basis of his conviction would render him eligible even if the reasoning in Briscoe regarding a violated of equal protection is sound. We remand the matter to allow defendant to establish he is entitled to a Franklin hearing.

First Holding:

A Franklin hearing permits parties to preserve evidence relevant to a future youthful offender parole hearing under section 3051. Certain persons are, however, categorically ineligible for youth offender parole hearings, including cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age.

Authority:

In re Cook (2019) 7 Cal.5th 439, 458-459

People v. Franklin (2016) 63 Cal.4th 261

People v. Hardin (2024) 15 Cal.5th 834, 843

Second Holding:

California’s youth offender parole statute offers opportunities for early release to certain persons who are incarcerated for crimes they committed at a young age. To this end, section 3051 requires the Board of Parole Hearings to hold a parole hearing for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of the controlling offense. The minimum number of years of incarceration before eligibility was 15, 20, or 25 years, depending on the length and nature of the sentence imposed.

Authority:

PEN 3051

People v. Hardin (2024) 15 Cal.5th 834, 843

Third Holding:

The court in Briscoe concluded, notwithstanding Hardin, section 3051 violates equal protection as applied to youth offenders who were convicted as a major participant who acted with reckless indifference to human life. Defendant may have been so convicted and therefore might be entitled to relief under section 3051. The trial court consequently erred in summarily denying defendant’s motion. Without taking a position on the correctness of Briscoe, we remand with directions to allow defendant the opportunity to demonstrate his eligibility for a Franklin hearing.

Authority:

People v. Briscoe (2024) 105 Cal.App.5th 479, 485, 494

Fourth Holding:

As a result of changes in the law regarding the liability of persons who were not the actual killer, a person may now be found guilty of murder if the person was a major participant in the felony and acted with reckless indifference to human life as described in section 190.2(d). Section 190.2(d) is the section describing a special circumstance under which a person may be punished by death or LWOP.

Thus, a person may be convicted simply of first degree murder as a major participant in the underlying felony who acted with reckless indifference to human life and be sentenced to either 25 years to life (the sentence for first degree murder without special circumstances) or LWOP (the sentence for the same act but in which the special circumstance was alleged that the defendant was a major participant in the underlying felony who acted with reckless indifference to human life).

Briscoe concluded that section 3051 purports to include the defendants convicted of the same behavior and received a sentence of 25 years to life, but to exclude those for whom the special circumstance describing the same behavior was alleged and found true and an LWOP sentence was imposed.

Briscoe concluded that section 3051 improperly denied equal protection under those circumstances, and that such individual should be eligible for consideration under section 3051 even if the sentence was LWOP.

Authority:

People v. Briscoe (2024) 105 Cal.App.5th 479, 494

Fifth Holding:

The equal protection clause of the Fourteenth Amendment to the United States Constitution provides that no state may deny to any person within its jurisdiction the equal protection of the laws. At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.

The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue. For the classification at stake here, based on a person’s criminal sentence, the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.

A court applying this standard finds a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose.

We analyze equal protection claims de novo

Authority:

People v. Hardin (2024) 15 Cal.5th 834, 847

People v. Briscoe (2024) 105 Cal.App.5th 479, 487

Sixth Holding:

Hardin considered that it does not violate equal protection for section 3051 to apply to those sentenced to LWOP who committed the offense before they were 18 years old but not apply to those sentenced to LWOP for crimes committed as an adult.

The defendant Hardin did not demonstrate that the Legislature acted irrationally in declining to grant the possibility of parole to young adult offenders convicted of special circumstance murder, even as it has granted youth offender hearings to young adults convicted of other offenses.

But the court made this conclusion without foreclosing the possibility of other as-applied challenges to the statute.

Authority:

People v. Hardin (2024) 15 Cal.5th 834, 838-839

Juveniles, Sentencing

Case 000621

Posted on by Gary McCurdy

Error and/or relief

The credit for time served was miscalculated and is corrected.

Holding:

The juvenile court must subtract days that a juvenile spends in custody before disposition from their maximum period of physical confinement. The court subtracts the full period of precommitment custody starting with the day of arrest and including the day of the dispositional hearing. When, as in this case, there is no dispute about a calculation error, we need not remand the matter for recalculation. Instead, we may modify the dispositional order.

Authority:

WIC 875

PEN 2900.5

In re Antwon R. (2001) 87 Cal.App.4th 348, 352, 353 [minors are entitled to same reduction that adults receive under Penal Code section 2900.5]

People v. Bravo (1990) 219 Cal.App.3d 729, 735 [custody credit includes days of arrest and sentencing]

Amelioration, Fines and fees, Sentencing

Case 000620

Posted on by Gary McCurdy

Error and/or relief

At a full resentencing conducted while vacating the defendant’s one-year prior prison sentence enhancements pursuant to Penal Code section 1172.75, the trial court declined to consider whether two of defendant’s prior “strike” convictions were still valid under the Three Strikes Reform Act of 2012, denied his request to dismiss those strikes under section 1385, imposed a new 10-year criminal protective order, and re-imposed a $5,000 restitution fine.

The matter is reversed for the court to hold a full resentencing hearing and exercise its discretion on whether or not to strike the prior convictions. Further, the court had no jurisdiction to reimpose a restitution fine because it had been ordered more than 10 years earlier and was rendered expired.

First Holding:

Under section 1172.75, a defendant who is eligible to have a prior prison sentence enhancement stricken is entitled to a full resentencing, at which time the trial court is to apply 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.

Authority:

PEN 1172.75

People v. Espino (2024) 104 Cal.App.5th 188, 193, 195, review granted* Oct. 23, 2024, S286987

[*Gary note: The Supreme Court issued its opinion in Espino on July 2, 2026, and affirmed the result in the Court of Appeal Espino decision–that a person is entitled to relief under section 1172.75 even if the punishment for the now-invalid prior prison term enhancement was stricken–resolving a question that was left unanswered in People v. Rhodius (2025) 17 Cal.5th 1050)]

People v. Green (2024) 104 Cal.App.5th 365, 373

Second Holding:

In Guevara, our Supreme Court held that a trial court engaged in a full resentencing under section 1172.75 of a person serving a life sentence under the Three Strikes Law must apply the Three Strikes Reform Act of 2012, including its provision according trial courts a discretionary override—as to defendants who would otherwise be eligible for relief—not to grant relief if the court determines that resentencing the defendant would pose an unreasonable risk of danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849-850

Third Holding:

Reversal and remand are necessary so that the trial court may consider whether the Reform Act would apply to the third-strike sentences imposed in this case and, if so, whether exercise of the court’s discretionary override is warranted. On remand, the court may also entertain any further requests to dismiss the prior strike convictions under section 1385(a)—but not under section 1385(c).

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 243-244

Fourth Holding:

However, the court may not impose a restitution fine pursuant to section 1202.4(b) because the 2025 amendment to section 1465.9 provides that a restitution fine expires 10 years after the date of imposition. Because the restitution fine in this case was imposed over 25 years ago, it expired and may not be reimposed.

Authority:

PEN 1465.9

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038, on another point)