The opinion
Filed 6/23/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re THOMAS FLOYD BRISSETTE F089603
On Habeas Corpus. (Super. Ct. No. SC072218A)
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. David Wolf,
Judge.
Stephan L. Gunther for Petitioner.
Rob Bonta, Attorney General, Sara J. Romano, Amanda J. Murray and Andrew M.
Gibson, Deputy Attorneys General, for Respondent.
-ooOoo-
Petitioner Thomas Floyd Brissette (Petitioner) was sentenced in 1985 by the Los
Angeles County Superior Court (LASC) to 15 years to life plus seven years for murder.
While in custody in state prison in Kern County on that sentence, petitioner was
sentenced in 1998 by the Kern County Superior Court (KSC) to eight years for
possession by an inmate of a controlled substance (methamphetamine), to be served
consecutively to the 1985 murder conviction and sentence. In July 2024, the LASC and
the KSC received separate notices from the California Department of Corrections and
Rehabilitation (CDCR) that petitioner qualified for compassionate release under Penal
Code 1 section 1172.2. The KSC denied the petition for compassionate release.
Two months later, the LASC granted the petition for compassionate release and ordered
the CDCR to release petitioner. The CDCR acknowledged the LASC’s order but refused
to release petitioner and continued to enforce the eight-year sentence from the KSC.
Petitioner filed a writ of habeas corpus with the California Supreme Court and sought a
full release based on the LASC’s order. The California Supreme Court ordered the
Secretary of the CDCR (Respondent) to show cause why the writ should not be granted
on the basis that section 1172.2 is irreconcilable with section 1170.1, subdivision (c)
(hereafter 1170.1(c)) and transferred the matter to our court for resolution. We conclude
that section 1172.2 is reconcilable with section 1170.1(c) and therefore, deny petitioner’s
writ.
FACTUAL AND PROCEDURAL BACKGROUND
In 1985, Brissette pled guilty to second degree murder (§ 187) and admitted to
personally using a firearm during the commission of the murder (§ 12022.5). He also
admitted to a prior serious felony conviction (§ 667, subd. (a)(1)). The trial court
sentenced Brissette to 22 years to life in state prison. (People v. Brissette (Mar. 7, 2025,
F088468) [nonpub. opn.] (Brissette).)
In 1997, while still imprisoned under the 1985 murder sentence, petitioner was
discovered with two bindles of methamphetamine hidden in his mouth. (Brissette, supra,
F088468.) In 1998, petitioner pled guilty in the KSC to a violation of section 4573.6
(possession of a controlled substance by an inmate) for possession of methamphetamine.
Petitioner was sentenced to eight years, consecutive to the 1985 sentence for murder.
Specifically, the judgment provides: “This case to be served consecutive to L.A. County
Case A532808 for a total term of 15 yrs. to life plus 2 yrs. plus 5 yrs. plus 8 yrs.”
1 All further references are to the Penal Code unless otherwise noted.
2.
On July 10, 2024, the CDCR Director of Health Care Services sent two separate
notifications, one to the LASC and one to the KSC, pursuant to section 1172.2, that
petitioner met the clinical criteria for recall of sentence.
On August 9, 2024, the KSC denied petitioner’s section 1172.2 petition. The KSC
recounted petitioner’s criminal record, prison disciplinary record, medical records, and
medical condition and concluded that petitioner would pose an unreasonable danger to
the public if released. Petitioner filed a notice of appeal the same day.
On September 30, 2024, the LASC granted petitioner’s section 1172.2 petition. In
relevant part, the LASC order read: “It is ordered that the previously imposed sentence
be recalled in its entirety, which will result in the discharge of the above offender upon
release from [CDCR’s] jurisdiction. [CDCR] shall release the prisoner within 30
calendar days to a location where access to care is available.”
On October 30, 2024, the CDCR sent an e-mail to petitioner’s attorneys. The
CDCR concluded that in order to release petitioner from custody, the KSC would need to
recall the eight-year sentence. The CDCR explained:
“Although [petitioner’s] commitment offense (PC 187) sentence was
recalled, his sentence for possession of a controlled substance in prison (PC
4573.6) was not. CDCR’s position is that [the KSC] also needs to recall
[petitioner’s section] 4572.6 sentence. Penal Code section 1170.1(c)
provides that when a person is convicted of a felony committed in state
prison, and the term imposed for the offense is consecutive, the term of
imprisonment shall commence from the time the person would otherwise
have been release[d] from prison. [Petitioner] is therefore now serving his
sentence for the in-prison offense (PC 4573.6), and this term began when
his life sentence was recalled per [section] 1170.1.”
On February 25, 2025, petitioner through counsel filed a petition for writ of
habeas corpus with the California Supreme Court. The petition sought petitioner’s
release on grounds related to the LASC’s section 1172.2 order.
On March 5, 2025, respondent filed an informal response to petitioner’s petition
for writ of habeas corpus and argued that relief was inappropriate.
3.
On March 7, 2025, our court affirmed the KSC’s denial of compassionate release.
The opinion noted that the LASC had granted petitioner relief under section 1172.2., but
we emphasized that the appeal/order “concerns only [petitioner’s] section 1172.2 petition
with respect to the 1998 drug conviction in Kern County.” We held that substantial
evidence supported both an implied ruling that petitioner did not meet the medical criteria
of section 1172.2 for release and an express ruling that defendant would pose a danger to
the public if released. (Brissette, supra, F088468.)
On March 26, 2025, the California Supreme Court issued an order to show cause
with a return to our court. The order reads in relevant part: “[Respondent] is ordered to
show cause, returnable before the Court of Appeal, Fifth Appellate District, why relief
should not be granted on the ground Penal Code section 1172.2 is irreconcilable with
Penal Code section 1170.1, subdivision (c).” This order was filed in our court on April 4,
2025.
On April 28, 2025, respondent filed its return.
On May 5, 2025, petitioner filed his traverse.
On May 14, 2025, the Supreme Court denied review of our March 7, 2025 opinion
upholding the KSC’s section 1172.2 order.
DISCUSSION
I. POTENTIALLY IRRECONCILABLE STATUTES
A. Parties’ Arguments
1. Petitioner
In his writ petition, petitioner argues in part that an inmate only serves a single
sentence even if that sentence has multiple parts, includes a consecutive term under
section 1170.1(c), and/or consists of multiple convictions from multiple counties.
However, because section 1170.1(c) consecutive sentences are schematically viewed as
separate and independent sentences, and because the CDCR sent two separate section
1172.2 notices to different courts, there is an irreconcilable ambiguity with respect to
4.
section 1172.2’s compassionate release application when an unserved section 1170.1(c)
consecutive sentence is involved. Petitioner argues that accepting respondent’s position
that two section 1172.2 hearings are necessary, one conducted by the court that imposed
the initial outside-prison sentence and the later sentence conducted by the court that
imposed the in-prison section 1170.1(c) sentence, leads to absurd results and is contrary
to the intent behind section 1172.2, which clearly envisions a single proceeding. The
LASC had jurisdiction to rule on the matter by virtue of the CDCR’s section 1172.2
notice, and, under the rule of lenity 2, that order should be given effect.
2. Respondent
In an informal response to petitioner’s petition, respondent argues in part that
petitioner was not serving a single aggregate term. Because sentences imposed under
section 1170.1(c) are separate and distinct from sentences imposed for conduct outside of
prison, petitioner was serving two sentences. Since the KSC did not recall its sentence,
respondent argues that petitioner is not entitled to release.
3. Respondent’s Return
In their return, respondent argues in part that section 1170.1(c) and section 1172.2
are reconcilable. Respondent contends that consecutive sentences under section
1170.1(c) are separate and independent from an earlier outside-prison offense and do not
begin to run until the outside-prison sentence has terminated. As separate and
independent sentences, respondent argues section 1172.2. should be read as mandating
that both the sentencing court for the outside-prison sentence and the sentencing court for
the in-prison sentence perform separate section 1172.2 assessments. Respondent argues
that this reading is supported by a number of considerations. First, by requiring the
2 The rule of lenity “ ‘ “generally requires that ‘ambiguity in a criminal statute
should be resolved in favor of lenity, giving the defendant the benefit of every reasonable
doubt on questions of interpretation.’ ” ’ ” (People v. Reynoza (2024) 15 Cal.5th 982,
1012.)
5.
outside-prison sentencing court and the in-prison sentencing court to separately assess
compassionate release, section 1172.2, subdivision (l) (hereafter 1172.2(l)), which
requires that “the court who sentenced” a defendant must resolve a section 1172.2
petition, is given effect and the jurisdictional limitations of superior courts are respected.
Second, it is consistent with section 1172.2, subdivision (i) (hereafter 1172.2(i)), which
calls for “release” within 48 hours, because courts in the section 1170.1(c) context have
interpreted “release” to be release from a sentence, not release from incarceration. Third,
it is consistent with section 1172.2’s goals of making compassionate release more
accessible, saving prison health care costs, and the overriding goal of promoting public
safety. Finally, respondent contends this interpretation avoids the absurd consequences
of: making a separate independent sentence entirely nugatory; permitting a superior court
that did not impose a separate sentence to recall that sentence; and giving an inmate with
an in-prison sentence two opportunities to obtain compassionate release while an inmate
without an in-prison offense has only one opportunity to obtain compassionate release.
4. Petitioner’s Traverse
In his traverse, petitioner argues in part that section 1172.2 is irreconcilable with
section 1170.1(c) because, while the statutory language of section 1172.2 makes it clear
that a single proceeding is to occur, section 1170.1(c) operates to create a sentence for an
in-prison crime that is separate and distinct from the sentence imposed for an outside-
prison crime. Harmonization, as urged by respondent, is not possible, because the
respondent’s suggested interpretation would require the court to rewrite section 1172.2 to
expressly provide for separate hearings. As the later enacted and more specific statute,
section 1172.2’s requirement of a single proceeding must control. Petitioner argues that
the KSC order was entered without jurisdiction because at the time that the KSC ruled,
petitioner was still serving the LASC sentence and the KSC sentence had not begun.
Petitioner contends that because the KSC sentence had not begun, the KSC was not the
appropriate court to rule on the section 1172.2 petition.
6.
B. Legal Standard
When interpreting a statute, a court’s fundamental task is to determine the
Legislature’s intent so that the purpose of the statute may be effectuated. (See People v.
Walker (2024) 16 Cal.5th 1024, 1032; People v. Ruiz (2018) 4 Cal.5th 1100, 1105.)
Courts begin by giving the statute’s words a plain, ordinary, and commonsense meaning
and then consider the words within the entire context of the statutory framework, keeping
in mind the nature and purpose of the statute. (See ibid.) If the statutory language is
susceptible to more than one reasonable interpretation, then courts may consider extrinsic
aids such as legislative history and public policy. (See Walker, supra, at p. 1032; Ruiz,
supra, at pp. 1105–1106.) However, if the statutory language is clear, courts must follow
the statute’s plain meaning unless to do so would lead to an absurd result that the
Legislature could not have intended. (People v. Reynoza, supra, 15 Cal.5th at p. 989;
People v. Prudholme (2023) 14 Cal.5th 961, 975.)
“ ‘Repeals by implication are not favored and are recognized only when there is a
conflict between two or more legislative enactments.’ ” (In re White (1969) 1 Cal.3d
207, 212; People v. Sowers (1995) 49 Cal.App.4th 230, 238.) Because the law shuns
repeals by implication, there is a strong presumption against implied repeals. (People v.
Hazelton (1996) 14 Cal.4th 101, 122.) Courts “do not presume that the Legislature
intends, when it enacts a statute, to overthrow long-established principles of law unless
such intention is clearly expressed or necessarily implied.” (People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183, 199.) If reasonably possible, courts must
“ ‘ “ harmonize statutes, reconcile seeming inconsistencies in them, and construe them to
give force and effect to all of their provisions.” ’ ” (Evan Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838; People v.
Terwilligar (2025) 109 Cal.App.5th 585, 596.) Nevertheless, the duty of courts to
harmonize two statutes when possible is “ ‘not a license to redraft the statutes to strike a
compromise that the Legislature did not reach.’ ” (Lopez v. Sony Electronics, Inc. (2018)
7.
5 Cal.5th 627, 634; In re Jenson (2018) 24 Cal.App.5th 266, 275.) If “no rational basis
exists to harmonize the two … statutes and the statutes are irreconcilable, clearly
repugnant, and so inconsistent that they cannot operate concurrently,” then courts must
find an implied repeal. (People v. Acosta (2002) 29 Cal.4th 105, 122; see Lopez, supra,
at p. 637.) That is, where the two statutes are truly in conflict, “one must be interpreted
as providing an exception to the other.” (State Dept. of Public Health v. Superior Court
(2015) 60 Cal.4th 940, 956; Jenson, supra, at p. 275.) In such a case, “ ‘later enactments
supersede earlier ones [citation], and more specific provisions take precedence over’ the
more general.” (People v. Adelmann (2018) 4 Cal.5th 1071, 1079; see Lopez, supra, at p.
634; Jenson, supra, at p. 275.)
C. Discussion
The parties disagree whether section 1172.2 and section 1170.1(c) can be
harmonized. To resolve this dispute, we first examine and interpret the two statutes
separately. Once we have determined the meaning and requirements of the two statutes,
we then interpret the statutes together. Through this process, we conclude that the two
statutes are reconcilable.
1. Operation of Section 1172.2
a. Section 1172.2 Framework
California law authorizes the compassionate release of prisoners through section
1172.2. 3 (People v. Lewis (2024) 101 Cal.App.5th 401, 403.) Pursuant to section
1172.2, if the statewide chief medical executive after appropriate consultation determines
that an incarcerated person meets two statutorily established medical criteria 4, the CDCR
3 Compassionate release is unavailable, however, to inmates serving a death
sentence or a sentence of life without the possibility of parole. (§ 1172.2, subd. (o).)
4 The two criteria are that the inmate: (1) has a serious and advanced illness with an
end-of-life trajectory; or (2) is permanently medically incapacitated to such a degree that
he cannot complete basic activities of daily life. (§ 1172.2, subd. (b).)
8.
“shall recommend to the court that the incarcerated person’s sentence be recalled.”
(§ 1172.2, subds. (a), (b); People v. Multani (2024) 106 Cal.App.5th 1334, 1342
(Multani).) Within 10 days of receipt of a recommendation for compassionate release by
CDCR, “the court shall hold a hearing to consider whether the incarcerated person’s
sentence should be recalled.” (§ 1172.2, subd. (c).) “If possible, the matter shall be
heard before the same judge of the court who sentenced the incarcerated person.”
(§ 1172.2(i).) If the trial court finds that the incarcerated person does in fact meet either
of the two medical criteria, then a presumption in favor of recall and resentencing arises.
(§ 1172.2, subd. (b) (hereafter 1172.2(b)); Multani, supra, at p. 1342; Lewis, supra, at p.
408.) The presumption “may only be overcome” if the trial court finds, “based on the
incarcerated person’s current physical and mental condition,” that the incarcerated person
would pose “an unreasonable risk of danger to public safety” if the sentence is recalled.
(§ 1172.2(b); Multani, supra, at p. 1343; Lewis, supra, at pp. 408–409.) An
“unreasonable risk of danger” is defined through incorporation of section 1170.18
(§ 1172.2(b)), to mean an unreasonable risk that the incarcerated person will commit a
new “super strike,” which is any violent felony listed under section 667, subdivision
(e)(2)(C)(iv). (Multani, supra, at p. 1343; §§ 1172.2(b), 1170.18.) “If the court grants
the recall and resentencing application, the incarcerated person shall be released by the
department within 48 hours of receipt of the court’s order, unless a longer time period is
agreed to by the incarcerated person. At the time of release, the warden … shall ensure
that the incarcerated person has … a discharge medical summary, full medical records,
state identification, parole or postrelease community supervision medications, and all [of
their] property …. After discharge, any additional records shall be sent to the
incarcerated person’s forwarding address.” (§ 1172.2(l).)
9.
b. Section 1172.2 Mandates a Single Court Determine a
Compassionate Release Petition
The parties dispute whether section 1172.2 mandates a single court or multiple
courts determine a compassionate release petition. We conclude that section 1172.2
mandates a single court.
First, throughout section 1172.2, the Legislature referred to actions by or directed
to “the court” thirteen times. (See § 1172.2, subds. (a), (b), (c), (e), (h), (i), (j), (k), (l),
(p).) Significantly, this includes having “the same judge of the court who sentenced the
incarcerated person,” that is “the sentencing court,” to resolve the section 1172.2 petition.
(§ 1172.2(i).) At no point does section 1172.2 refer to “the courts” plural (§ 1172.2), and
only once refers to “a court” in a sentence that also refers to “the court.” (§ 1172.2(b).)
The Legislature’s choice to use definite articles is significant. (Rapanos v. United States
(2006) 547 U.S. 715, 732–733; North American Title Co. v. Superior Court (2024) 17
Cal.5th 155, 174–175; Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1396–
1397.) “Use of the indefinite articles ‘a’ or ‘an’ signals a general reference, while use of
the definite article ‘the’ (or ‘these’ in the instance of plural nouns) refers to a specific
person, place, or thing.” (Pineda, supra, at p. 1396; Robinson v. Superior Court (2023)
88 Cal.App.5th 1144, 1166; Lincoln Unified School Dist. v. Superior Court (2020) 45
Cal.App.5th 1079, 1094.) Because the Legislature prolifically referred to “the court”
throughout section 1172.2, the use of the definite article “the” indicates only a single
court will resolve a section 1172.2 petition.
Second, section 1172.2(l) shows that when a section 1172.2 petition is granted, the
consequence is the expedited physical release of the inmate from CDCR’s custody.
Specifically, section 1172.2(l) requires the CDCR to release the inmate within 48 hours
of the court granting the inmate’s petition unless the inmate agrees to additional time in
custody. (§ 1172.2(l).) At the time the inmate is released by CDCR, CDCR is required
to ensure the inmate has his property, identification, a medical discharge summary, all
10.
medical records, and medications. (Ibid.) Section 1172.2(l) says nothing about any
additional section 1172.2 hearings in other courts, nor does section 1172.2(l) place any
judicial or administrative caveats on physical release from custody (other than the
inmate’s own consent) or provide a mechanism for additional involuntary custody if
compassionate release is granted. If multiple courts or proceedings were contemplated
by section 1172.2, then section 1172.2(l) would include caveats to the inmate’s speedy
release or expressly state that the inmate’s ultimate release could depend on additional
proceedings by different courts. Instead, section 1172.2(l) flatly provides for a definitive
release date by CDCR, requires CDCR to provide the inmate with specific items that are
obviously meant to help the inmate live and obtain medical care outside of prison, and
allows for a longer release date only if agreed by the inmate. Therefore, section
1172.2(l)’s mandate of an expedited physical release from the granting of a section
1172.2 petition is consistent with a single court conducting a single proceeding.
To the extent respondent argues that section 1172.2(l)’s use of the term “release”
means release from a particular sentence and not a release from custody, we disagree.
Respondent relies primarily on In re Coleman (2015) 236 Cal.App.4th 1013 (Coleman).
However, Coleman dealt with the question of when a section 1170.1(c) term for an in-
prison offense begins to run when the outside-prison term is a life sentence; it did not
involve section 1172.2. (Coleman, supra, at p. 1016.) Additionally, respondent’s
argument is inconsistent with the provisions of section 1172.2(l). If “release” meant
“release” from a term of imprisonment and not release from custody, there would be no
need to ensure that the inmate has identification, all of his property, and medical records
upon “release” because all of those items would still be in the inmate’s possession or with
the prison’s healthcare providers. There would also be no need to provide an exception
to the release date based on the inmate’s consent because a release from a term of
imprisonment would generally involve only administrative notations regarding a
sentence; the inmate would still remain in custody. Further, as explained below, a release
11.
from only one sentence does not further section 1172.2’s goals of saving healthcare
expenses or expanding the criteria of, and streamlining the process for, compassionate
release. (People v. Loper (2015) 60 Cal.4th 1155, 1160 (Loper); Multani, supra, 106
Cal.App.5th at pp. 1345–1347.) Finally, a Senate committee analysis of section 1172.2
notes that, under section 1172.2’s predecessor (former § 1170, subd. (e)), if
compassionate release was granted, the inmate was “no longer subject to the jurisdiction
of the [CDCR] ….” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 960
(2021-2022 Reg. Sess.) as amended May 27, 2022, p. 6.) If an inmate is no longer under
CDCR jurisdiction, it means that the CDCR no longer has custody of the inmate. We
detect nothing in section 1172.2 that would be contrary to applying the Senate
committee’s observation to section 1172.2. (Cf. In re Brown (2024) 104 Cal.App.5th
969, 981 (Brown) [noting that courts may consult legislative history to confirm an
interpretation of a statute that is apparent from the plain language].) For these reasons,
we reject respondent’s argument that section 1172.2’s use of the term “release” could
mean release from a term of imprisonment and not a release from custody.
Third, having multiple courts determine a section 1172.2 petition is contrary to the
purposes of section 1172.2. Section 1172.2 became effective on January 1, 2023, and
amended the existing procedures for compassionate release. (Nijimeddin v. Superior
Court (2023) 90 Cal.App.5th 77, 80.) The Legislature intended for section 1172.2 to
“broaden the eligibility criteria for compassionate release and make it available to more
incarcerated persons.” (Multani, supra, 106 Cal.App.5th at p. 1345.) Section 1172.2 was
also intended to save California taxpayers the high costs of health care for terminally ill
12.
or aging inmates 5 and to streamline the cumbersome process for obtaining compassionate
release. (See Multani, supra, at p. 1346–1347; see also Loper, supra, 60 Cal.4th at p.
1160; Martinez v. Board of Parole Hearings, supra, 183 Cal.App.4th at p. 590–591
(Martinez).) According to the author of section 1172.2 (whose comments were part of
the legislative record and analyses) many inmates who did not pose a risk to public safety
would die in prison while awaiting a referral for compassionate release, which in part
resulted in California bearing the health care expenses of those inmates. (Multani, supra,
at p. 1346; Assem. Conc. Sen. Amends. to Assem. Bill No. 960 (2021-2022) Reg. Sess.,
as amended Aug. 16, 2022, p. 3; Sen. Com. on Public Safety, Analysis of Assem. Bill
No. 960 (2021-2022 Reg. Sess.) as amended May 27, 2022, p. 5; see also In re Jennings
(2004) 34 Cal.4th 254, 264 [considering the comments of a bill’s author where those
comments were incorporated in the Assembly committee report/analysis of the bill];
People v. Falcon (2023) 92 Cal.App.5th 911, 925–926 [same], disapproved on other
grounds in People v. Lynch (2024) 16 Cal.5th 730.) To interpret section 1172.2 as
permitting multiple courts to resolve compassionate release petitions would hinder
section 1172.2’s legislative goals by creating an additional barrier to a subset of inmates
who are otherwise eligible for compassionate release. This subset of inmates would have
5 The Multani court was uncertain about this purpose and noted that the legislative
history “does not so emphatically indicate that a predominate purpose … was to increase
fiscal savings.” (Multani, supra, 106 Cal.App.5th at p. 1347.) Nevertheless, section
1172.2’s author recognized that the existing procedure caused Californians to pay for
“costly health care services” for inmates who ultimately died in prison (Multani, supra, at
p. 1346), and the Assembly Committee on Public Safety analysis of section 1172.2 noted
the high costs of caring for an aging prison population. (Assem. Com. on Public Safety,
Analysis of Assem. Bill No. 960 (2021-2022 Reg. Sess.) as amended Apr. 12, 2021, p. 6.)
Moreover, courts have recognized that saving the expense of costly health care was a
primary purpose behind section 1172.2’s predecessor, former section 1170, subdivision
(e). (Loper, supra, 60 Cal.4th at p. 1160; Multani, supra, at p. 1347; Martinez v. Board
of Parole Hearings (2010)183 Cal.App.4th 578, 590–591.) Given these considerations,
we have no issue with recognizing that the intent to save money is a legislative purpose
of section 1172.2.
13.
to present the same evidence and information to a second court and then wait additional
time for the second court to conduct a hearing and then make a ruling. If the courts reach
different conclusions after viewing the same evidence and information, then appeals
and/or writ proceedings will ensue, and the inmate will remain in custody until those
appeals or writs are resolved. It is possible that the inmate could die while awaiting
resolution of his compassionate release petition in the same manner as described by
section 1172.2’s author. Such a result forces an inmate to navigate a cumbersome legal
process and would require California to continue to bear costly healthcare expenses,
expend substantial amounts of judicial resources, and keep an inmate who meets the
expanded criteria for release (at least according to one court) in prison. We cannot find
that respondent’s interpretation furthers or is consistent with section 1172.2’s legislative
purposes. 6 In contrast, limiting the compassionate release process to a single proceeding
before a single court eliminates the possibility of conflicting rulings, provides a
streamlined process with a single track for the inmate to pursue appellate relief,
minimizes the expenditure of judicial resources, and, if the section 1172.2 petition is
granted, ensures both that California incurs no more healthcare costs and that the inmate
is expeditiously released from custody.
Finally, and relatedly, interpreting section 1172.2 to encompass multiple hearings
in front of multiple courts could lead to absurd results as illustrated by this case. Here,
6 Respondent argues that having two hearings before different courts furthers
section 1172.2’s legislative purpose of protecting public safety. Respondent relies on
section 1172.2, subdivision (b), which in part permits a court to deny compassionate
release on a showing that the inmate would pose an unreasonable risk to the public.
However, section 1172.2, subdivision (b) is not a statement of legislative intent or
purpose; rather, this part of the statute is a safety valve that ensures inmates who continue
to be a danger to the public are not released, irrespective of their medical condition.
(§ 1172.2(b).) The remainder of section 1172.2’s numerous subdivisions address the
procedure for processing a section 1172.2 petition and releasing an inmate. We think
respondent reads too much into section 1172.2, subdivision (b).
14.
two different superior courts received notice from the CDCR at roughly the same time.
Two different superior court judges reviewed the same information from CDCR
pertaining to petitioner. Two separate hearings were held in two separate counties.
Despite reviewing the same information, the two judges reached opposite conclusions
and issued conflicting orders. After finding that section 1172.2’s medical criteria had
been met and that petitioner did not pose an unreasonable danger to the public, the LASC
ordered petitioner’s immediate release. The KSC reached precisely the opposite
conclusions. Again, after reviewing the same information as the LASC, the KSC
impliedly found that petitioner did not meet the criteria for medical release and expressly
held he would pose a danger to the public if released. Because multiple superior courts
were involved, there has been: (1) an order by one court that requires the CDCR to
release petitioner from custody; (2) an order by another court that effectively keeps
petitioner in custody; (3) an appellate opinion affirming the order denying compassionate
release; (4) an appeal to the California Supreme Court regarding the denial of release; and
(5) this writ proceeding, which originated in the California Supreme Court before being
transferred to us. Also, as suggested by respondent in their return, the KSC and LASC
conflicting rulings raise the possibility that the doctrine of issue preclusion may be
implicated. It appears that application of issue preclusion in this context is an issue of
first impression. 7 The collective absurdity of the conflicting rulings based on a review of
identical information, the novel legal issues implicated, the separate appellate paths
involved, and the significant expenditure of judicial resources would be avoided if
section 1172.2 is interpreted to mean that a single court is to resolve an inmate’s section
1172.2 petition.
7 Because it is an issue of first impression, and because no party has adequately
argued that this writ should be decided through issue preclusion, we express no opinion
as to the effect that issue preclusion may have in petitioner’s case.
15.
For these reasons, we hold section 1172.2 requires that a single court resolve an
inmate’s petition for compassionate release.
2. Operation of Section 1170.1(c)
a. Section 1170.1 Framework
“Consecutive sentencing is governed by section 1170.1 ….” (People v. Palacios
(2007) 41 Cal.4th 720, 730, fn. 5.) Section 1170.1, subdivision (a) (§ 1170.1(a)) provides
that, for cases in which a defendant is convicted of multiple offenses that carry a
determinate term, and the trial court imposes consecutive sentences for those multiple
offenses, an aggregate sentence is to be imposed that consists of a full principal term (the
offense with the longest term of imprisonment), subordinate terms (any offense
consecutive to the principal term and generally one-third of the middle term), and
enhancements. (See § 1701.1(a); People v. Felix (2000) 22 Cal.4th 651, 655; Coleman,
supra, 236 Cal.App.4th at pp. 1018–1019; People v. White (1988) 202 Cal.App.3d 862,
868 (White).)
Convictions for felonies committed while a defendant is imprisoned in a state
prison are exempt from the section 1170.1(a) sentencing scheme. (§ 1170.1(c); People v.
Brantley (2019) 43 Cal.App.5th 917, 921–922 (Brantley); White, supra, 202 Cal.App.3d
at p. 868; People v. Holdsworth (1988) 199 Cal.App.3d 253, 256 (Holdsworth); In re
Sims (1981) 117 Cal.App.3d 309, 313 (Sims).) Instead, in-prison felonies that are ordered
or required by law to be served consecutively are governed by section 11701.1(c).
(People v. Landry (2016) 2 Cal.5th 52, 105 (Landry); Coleman, supra, 236 Cal.App.4th
at p. 1019; White, supra, at pp. 869; Sims, supra, at p. 313.) Section 1170.1(c) reads:
“In the case of any person convicted of one or more felonies
committed while the person is confined in the state prison … and the law
either requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions that the
person is required to serve consecutively shall commence from the time the
person would otherwise have been released from prison. If the new
offenses are consecutive with each other, the principal and subordinate
16.
terms shall be calculated as provided in subdivision (a). This subdivision
shall be applicable in cases of convictions of more than one offense in the
same or different proceedings.”
Section 1170.1(c) treats in-prison offenses differently from section 1170.1(a)
outside-prison offenses because the “Legislature wanted in-prison crimes to be punished
more severely than crimes committed [outside-prison].” (Landry, supra, 2 Cal.5th at p.
105; Coleman, supra, 236 Cal.App.4th at p. 1018; White, supra, 202 Cal.App.3d at p.
869.) Sentences governed by section 1170.1(c) are longer than sentences governed by
section 1170.1(a) because a section 1170.1(c) sentence is fully consecutive to the offense
for which the defendant was imprisoned. (See Brown, supra, 104 Cal.App.5th at p. 974;
Brantley, supra, 43 Cal.App.5th at p. 922; White, supra, at p. 869.) That is, “under
section 1170.1(c), a term for an in-prison offense or multiple in-prison offenses begins to
run at the end of the prison term imposed for the original [outside-prison] offenses.” (In
re Tate (2006) 135 Cal.App.4th 756, 764–765 (Tate); see also Brown, supra, at p. 974;
People v. Walkkein (1993) 14 Cal.App.4th 1401, 1409–1410.) This is true whether the
outside-prison offense involves an indeterminate sentence or a determinate sentence.
(Brown, supra, at p. 974; In re Thompson (1985) 172 Cal.App.3d 256, 258.) The fully
consecutive sentence imposed under section 1170.1(c) for an in-prison offense is often
called a “Thompson term,” in reference to In re Thompson.8 (Brown, supra, at p. 974.)
b. Section 1170.1(c) Sentencing Scheme for Consecutive In-
Prison Sentence
Recently in Brown, our court examined the effect of a Thompson term on an
inmate’s eligibility for parole under section 3055, the Elderly Parole Program. (Brown,
supra, 104 Cal.App.5th at p. 973.) Parole under section 3055 is generally available to
inmates who are at least 50 years old and have served at least 20 years “of continuous
incarceration on the inmate’s current sentence ….” (§ 3055, subd. (a), italics added;
8 We will use the phrases “Thompson term” and “section 1170.1(c) term”
interchangeably.
17.
Brown, supra, at p. 976.) However, section 3055 excludes “cases in which sentencing
occurs pursuant to [the Three Strikes law].” (§ 3055, subd. (g); Brown, supra, at p. 977.)
The petitioner in Brown had an outside-prison term of life plus four years and a fully
consecutive four-year Thompson term. (Brown, supra, at p. 974.) The Thompson term
was imposed through the Three Strikes law. (Brown, supra, at p. 973.) Although the
board found the petitioner suitable for parole under section 3055, the CDCR informed the
petitioner that he would begin to serve the Thompson term once parole became effective.
(Brown, supra, at p. 975.) The petitioner contended that he was entitled to a full release
because his outside-prison offense was not imposed under the Three Strikes law. (Id. at
p. 977.) The petitioner focused on section 3055, subdivision (a)’s use of the term
“current sentence” and argued that his “current sentence” was the sentence on his
outside-prison offense because his fully consecutive Thompson term had not yet begun.
(Brown, supra, at p. 978.) The petitioner’s argument was rejected. (Id. at pp. 979–980.)
Brown focused on the meaning of the term “sentence.” (Ibid.) Brown explained that
neither the Penal Code in general nor section 3055 in particular defined “sentence.”
(Brown, supra, at p. 979.) “However, published opinions have consistently held that,
although a criminal sentence may comprise multiple terms, it is nevertheless considered a
single aggregate sentence.” (Ibid.) Brown further noted that a “ ‘person sentenced for
convictions in multiple cases receives a single sentence.’ ” (Ibid., quoting In re Bolton
(2019) 40 Cal.App.5th 611, 624.) Brown presumed “the Legislature was aware of the
decisional authority that treats a ‘sentence’ as a single term of imprisonment even if it
comprises multiple components.” (Ibid.) The Brown court believed that to adopt the
petitioner’s argument would have required it to “alter the plain language [of section
3055] to accomplish a purpose that does not appear on its face.” (Id. at p. 980.)
Accordingly, Brown determined that the petitioner’s “ ‘current sentence’ included both
his [initial] indeterminate term and his [later] fully consecutive determinate term.” (Ibid.)
Because the petitioner’s “ ‘current sentence’ had a term imposed under the Three Strikes
18.
law,” the petitioner’s “ ‘current sentence’ rendered him ineligible for parole release
pursuant to the Three Strikes exclusion in section 3055.” (Ibid.)
Admittedly, unlike Brown, this case does not deal with section 3055.
Nevertheless, it was necessary for Brown to determine the nature of the petitioner’s
sentence in light of the Three Strikes Thompson term. Under Brown, an inmate is
considered to have a single total sentence even when the inmate has yet to begin serving a
Thompson term. Respondent does not address this aspect of Brown. 9 Instead, respondent
argues that petitioner is serving two sentences and relies on cases that have characterized
Thompson terms as being distinct and separate from terms for outside-prison offenses.
Petitioner’s traverse agrees with respondent on this point. 10 We are not convinced by the
parties’ argument.
Section 1170.1(c) acts to exempt in-prison offenses from the sentencing scheme of
section 1170.1(a). (Brantley, supra, 43 Cal.App.5th at p. 922; White, supra, 202
Cal.App.3d at p. 869; Holdsworth, supra, 199 Cal.App.3d at p. 256; Sims, supra, 117
Cal.App.3d at p. 313.) That is, “[section 1170.1(c)] provides an exception to the general
9 Respondent does quote the last sentence of Brown, which is dicta and reads: “[a]n
inmate, like petitioner, who is found eligible for early parole under section 3055 must
nevertheless complete any Thompson term imposed pursuant to the Three Strikes law.”
(Brown, supra, 104 Cal.App.5th at p. 985.) Preceding this sentence, the Brown court
explained: “[T]his opinion does not call into question the parole board’s consideration of
petitioner’s suitability for early parole and the early termination of his indeterminate
term.” (Ibid.) We think that Brown’s dicta is a recognition of two things. First, if an
inmate has an outside-prison life term, a Thompson term cannot begin to run until the
parole board grants parole on that outside-prison life term. (Coleman, supra, 236
Cal.App.4th at pp. 1019–1020.) Second, as explained post, Thompson terms are a
component of a single sentence and are derived and operate separately from an outside-
prison term component. As a result, parole through section 3055 could operate to end the
outside-prison term component, but not the Three Strikes Thompson term component and
thus, not the single total sentence.
10 We note that petitioner in his writ petition relied heavily on Brown to argue that he
only has a single sentence.
19.
sentence computation provisions of [section 1170.1(a)] ….” People v. Logsdon (1987)
191 Cal.App.3d 338, 342.) For purposes of section 1170.1, “aggregate” is a “sentencing
word of art meaning the total term of imprisonment computed by adding the principal
term, the subordinate term, and any [applicable enhancements.]” (White, supra, at p.
868.) An in-prison offense is not subject to being “aggregated” through section 1170.1(a)
with an outside-prison term, meaning that a Thompson term is not set at one-third of the
middle term and then added to the outside-prison principal offense as a subordinate
offense, or vise versa. 11 (Logsdon, supra, at p. 342; Sims, supra, at pp. 313–314; see also
Brantley, supra, at p. 922; White, supra, at p. 869; Holdsworth, supra, at p. 256.)
Instead, section 1170.1(c) requires that the in-prison offense be fully consecutive to the
outside-prison offense. (Brantley, supra, at p. 922; White, supra, at p. 869; Holdsworth,
supra, at p. 256; Sims, supra, at pp. 313–314.) To meet this timing requirement, when
imposing a sentence, an in-prison section 1170.1(c) term is in effect “ ‘treated as a new
principal term rather than as a subordinate term to the [outside-prison] offense’ ” because
it cannot be “aggregated” into a prior outside-prison offense through application of
section 1170.1(a). (White, supra, at pp. 869–870; see Brantley, supra, at p. 922;
Coleman, supra, 236 Cal.App.4th at p. 1019; see also People v. Langston (2004) 33
Cal.4th 1237, 1242 [noting that when imposing a sentence, “new crimes committed while
in prison are treated as separate offenses and begin a new aggregate term.” (Italics
added)].) That is, “[t]he first [section 1170.1(c) term] becomes, in effect, a new
‘principal’ term rather than one ‘subordinate’ to the outside offense term, as could occur
under [section 1170.1(a)].” (People v. Reed (1993) 17 Cal.App.4th 302, 305 [italics
added].) However, simply because the section 1170.1(c) term is treated in effect as if it
11 We make this statement in the context of an inmate who has only one Thompson
term. If an inmate has multiple Thompson terms, those terms are aggregated together in
the manner prescribed by section 1170.1(a) to form one aggregated section 1170.1(c)
term. (§ 1170.1(c); People v. McCart (1982) 32 Cal.3d 338, 340.)
20.
were a new principal term in relation to section 1170.1(a) does not mean that an inmate
with a Thompson term is actually serving two sentences.
As explained by White, “the [section 1170.1(c) term for] an in-prison offense does
not become part of the aggregate prison term imposed for those offenses which were
committed ‘on the outside’ [of prison]. Instead the defendant is imprisoned for a total
term consisting of the sum of his aggregate sentence computed under section 1170.1(a)
plus the new aggregate term imposed under section 1170.1(c).” (White, supra, 202
Cal.App.3d at p. 870, italics added; see People v. Escobedo (2023) 95 Cal.App.5th 440,
452; Tate, supra, 135 Cal.App.4th at p. 765.) “Under a ‘box theory’ the outside offense
and attending enhancements are computed under section 1170.1(a) within the confines of
one box. Under section 1170.1(c), the in-prison offenses and enhancements are
computed according to section 1170.1(a) 12 in a separate box. The total term is computed
by adding the totals of the two boxes together.” (White, supra, at p. 870, italics added.)
The requirement that a sentencing court add the prior outside term to the new Thompson
term in order to reach a “total sentence” shows that the result will yield but one sentence.
White’s description of how section 1170.1(c) operates is entirely consistent with
the analysis in Brown. White described the process of finding an inmate’s “total
sentence” by adding the terms imposed through section 1170.1(a) together with a term
imposed through section 1170.1(c). (White, supra, 202 Cal.App.3d at p. 870.) Likewise,
Brown described a single “current sentence” that was composed of an outside-prison
indeterminate term and a fully consecutive in-prison section 1170.1(c) term. (Brown,
supra, 104 Cal.App.5th at p. 980.) This is also consistent with authority that has
recognized, albeit in the context of credit accrual, that “consecutive sentences, even if
regarded as separate and distinct for some purposes, necessarily coalesce into one
12 Again, multiple in-prison offenses are aggregated together in the manner
prescribed by section 1170.1(a) to form one aggregated section 1170.1(c) term.
(§ 1170.1(c); People v. McCart, supra, 32 Cal.3d at p. 340.)
21.
aggregate term of confinement during which the prisoner is continuingly restrained of his
liberty.” (In re Cowen (1946) 27 Cal.2d 637, 647.)
The methodology of White and Brown is also reflected in the sentence in this case
as it appears in the abstract of judgment. As quoted above, the abstract of judgment
reads: “This case to be served consecutive to the L.A. County Case A532808 for a total
term of 15 yrs. to life plus 2 yrs. plus 5 yrs. plus 8 yrs.” As can be seen, there is a total
term that is identified, and the total term is composed of the outside-prison term (15 years
to life plus seven years) and the in-prison term (eight years), which is exactly as
described by White and Brown. (Brown, supra, 104 Cal.App.5th at p. 980; White, supra,
202 Cal.App.3d at p. 870.) While the abstract does not expressly state that the eight-year
sentence begins to run at the end of the 15 years to life plus seven years sentence, it is the
operation of section 1170.1(c) that provides the unspoken clarification that actual service
on the Thompson term component will begin only when the outside-prison term
component ends. (Landry, supra, 2 Cal.5th at p. 105.)
At its core, section 1170.1(c) does not actually operate to impose two entirely
separate and independent sentences. Instead, section 1170.1(c) is a technical sentencing
statute that addresses when an inmate begins “ ‘to serve’ consecutive sentences” and “the
time during which an inmate is actually serving a particular prison term ….” (Landry,
supra, 2 Cal.5th at p. 105.) As recognized by both Brown and White, when a Thompson
term is involved, there remains a single total sentence. That single total sentence is
composed of two separate and distinct components: an outside-prison term and a
Thompson term that are calculated and derived separately from each other. The inmate
will begin serving the Thompson term component only after his outside-prison term
component has ended. (Brown, supra, 104 Cal.App.5th at pp. 974, 980; White, supra,
202 Cal.App.3d at pp. 869–870.) In other words, because a section 1170.1(c) Thompson
term operates and is derived separately from both an outside-prison term and the
sentencing scheme of section 1170.1(a), it is a separate and distinct component of an
22.
inmate’s single total sentence. 13 (See Brown, supra, at p. 980; White, supra, at pp. 869–
870; see also Holdsworth, supra, 199 Cal.App.3d at p. 256; Sims, supra, 117 Cal.App.3d
at pp. 313–314.)
In sum, when a court imposes a Thompson term/section 1170.1(c) term on an
inmate, the inmate still has only one sentence. (See Brown, supra, 104 Cal.App.5th at p.
980; White, supra, 202 Cal.App.3d at pp. 869–870; cf. also In re Cowen, supra, 27 Cal.2d
at p. 640.)
3. Section 1170.1(c)’s Interaction with Section 1172.2
With the understanding that section 1172.2 mandates that a single court resolve an
inmate’s compassionate release petition, and that a Thompson term is merely a separate
and distinct component of a single total sentence, it is possible to harmonize section
1170.1(c) and section 1172.2.
Section 1172.2(i) directs that the judge of the sentencing court (if possible) is to
resolve the section 1172.2 petition. (§ 1172.2(i).) When a sentence is imposed on an
inmate in multiple cases, there is but one sentence. (Brown, supra, 104 Cal.App.5th at p.
973; In re Bolton, supra, 40 Cal.App.5th at p. 624.) Each time an inmate receives a new
term in multiple cases, the inmate’s sentence is considered to be a resentencing.
(Couzens, Bigelow & Prikett, Sentencing California Crimes (The Rutter Group 2025),
Prison Sentence with Multiple Cases, § 14:3 (hereafter Couzens, § 14.3) [“The
sentencing of multiple cases results in a resentencing of the defendant.”].) The effect is
that the latest court to impose a sentence on an inmate in a multiple case situation is
13 Because a section 1170.1(c) term is a component of a single sentence, but is
calculated separately and distinctly from, and begins to run after the conclusion of, the
outside-prison term component, dual enhancements may be applied to both terms (White,
supra, 202 Cal.App.3d at p. 870), good credit time may be earned at different rates for
the terms (Tate, supra, 135 Cal.App.4th at p. 765), and relief applicable to an outside-
prison term will be unavailable once the outside-prison term ends, even though the
inmate is serving the in-prison term component of his single total sentence. (People v.
Escobedo, supra, 95 Cal.App.5th at pp. 451–452.)
23.
considered to be the sentencing court. (See People v. Phoenix (2014) 231 Cal.App.4th
1119, 1126; 14 see also Couzens, § 14.3.) The prior courts are no longer considered to be
a sentencing court. (Phoenix, supra, at p. 1126 [“The Sacramento County trial court was
no longer a sentencing court, as its sentence was replaced by the consecutive sentence
imposed by the Yolo County trial court.”].) Therefore, when a court imposes a
Thompson term on an inmate, and the Thompson term is the last term that has been
imposed, the court that imposed the Thompson terms is considered to be the inmate’s
sentencing court. (See Phoenix, supra, at p. 1126; Couzens, § 14.3.) All courts prior to
the Thompson term are no longer the sentencing court. (See Phoenix, at p. 1126;
Couzens, § 14.3.)
As applied to this case, the KSC was the last authorized court to impose a sentence
on the petitioner, which was the Thompson term. Therefore, the KSC was the sentencing
court for petitioner’s single total sentence for purposes of section 1172.2(i). (See
Phoenix, supra, 231 Cal.App.4th at p. 1126; Couzens, § 14.3.) Because the KSC as the
sentencing court ruled on petitioner’s section 1172.2 petition, the provisions of both
section 1170.1(c) and section 1172.2 were properly applied.
14 We recognize that Phoenix involved section 1170.1(a), not section 1170.1(c), and
that section 1170.1(a) specifically requires the aggregation of determinate sentences even
if the principal and subordinate sentences originate from different courts. (§ 1170.1(a).)
Nevertheless, as explained in White and Brown, an inmate with a section 1170.1(c) term
still has a single total sentence. Because a single sentence results after the imposition of a
Thompson term, we detect no reason why Phoenix’s analysis would not apply in this
case.
24.
Accordingly, we do not find that section 1170.1(c) and section 1172.2 are
irreconcilable. Because section 1170.1(c) and section 1172.2 are reconcilable, we deny
petitioner’s writ. 15
DISPOSITION
The order for respondent to show cause is discharged. Petitioner’s writ of habeas
corpus is denied.
FRANSON, Acting P. J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
15 We note that our Supreme Court ordered the respondent to show cause why
petitioner’s writ should not be granted because sections 1170.1(c) and 1172.2 are
irreconcilable. The Supreme Court’s order did not address the conflicting orders of the
KSC and the LASC outside of the confines of statutory irreconcilability. Therefore, we
do not address the conflicting orders of the KSC and the LASC.
25.