The opinion
Filed 12/8/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B342911
(Super. Ct. No. CR22297)
Plaintiff and Appellant, (Ventura County)
v.
TRACY CAIN,
Defendant and Respondent.
Respondent Tracy Cain was sentenced to death in 1988.
The People appeal a trial court order recalling, inter alia, the
death penalty sentence pursuant to Penal Code section 1172.75. 1
We hold that the “full resentencing rule” (allegedly
triggered because of a now invalid one-year prior prison term
enhancement) does not provide an appropriate vehicle to achieve
respondent’s stated goal of nullifying the previously imposed
sentence of death. He may now seek modification of the
determinate portion of the judgment which is insignificant.
1 All statutory references are to the Penal Code.
Respondent also contends that the instant appeal is
premature. We reject this contention because the order “affects”
the substantial rights of the People. We hold that an order
vacating a judgment of death necessarily affects the substantial
rights of the People.
As we shall explain, the trial court is without power to
enter an order nullifying the death penalty. This death sentence
was affirmed by the California Supreme Court. It is final. Recall
and resentencing as to the death sentence would violate section
1509, which was enacted by voter initiative. Section 1509
provides, “A writ of habeas corpus pursuant to this section is the
exclusive procedure for collateral attack on a judgment of death.” 2
Thus, we reverse the trial court’s order recalling the death
sentence. We affirm the order recalling the noncapital portions of
respondent’s sentence. We remand the matter to the trial court
for resentencing on the noncapital portions of the judgment.
Factual and Procedural Background
The People charged respondent with the “special
circumstances” murders of William and Modena Galloway during
a 1986 home invasion burglary. A jury found him guilty of two
counts of first-degree murder (§§ 187, subd. (a), 189, subd. (a)),
2 Neither the superior court nor the Court of Appeal should
“tinker” with a judgment of death affirmed by the California
Supreme Court. Whether couched in stare decisis theory, law of
the case theory, or the like, we should be loath to interfere with,
alter, or amend such a judgment. The Legislature has not
expressly said that a section 1172.75 challenge authorizes a
superior court to vacate an affirmed death sentence. And, we
doubt that the Legislature, by simple statute, can change the
constitutional provisions for the implementation of the death
penalty.
2
two counts of burglary (§ 459), and one count of robbery (§ 211).
It found true several special circumstance allegations.
For each murder, the jury imposed the death penalty. The
trial court sentenced respondent to death. It imposed a
consecutive determinate term of seven years: the high term of six
years for burglary plus a one-year enhancement for a prior prison
term under section 667.5, former subdivision (b). In 1995 the
Supreme Court affirmed the judgment. (People v. Cain (1995) 10
Cal.4th 1, 18, cert. denied, Cain v. California (1996) 516 U.S.
1077 [133 L.Ed.2d 734].) Respondent’s subsequent petition for
writ of habeas corpus was denied. (See Cain v. Chappell (9th Cir.
2017) 870 F.3d 1003, cert. denied, Cain v. Davis (2018) 586 U.S.
987 [202 L.Ed.2d 348].)
In 2022 the California Department of Corrections and
Rehabilitation identified respondent as potentially eligible for
resentencing under section 1172.75 because the one-year
enhancement for a prior prison term was invalid. 3
Respondent submitted points and authorities arguing that
section 1172.75 requires a full resentencing hearing on all counts.
He requested the trial court to exercise its discretion under
3 “Prior to January 1, 2020, section 667.5, subdivision (b)
required trial courts to impose a one-year sentence enhancement
for each true finding on an allegation the defendant had served a
separate prior prison term and had not remained free of custody
for at least five years. [Citation.] . . . Effective as of January 1,
2020, Senate Bill No. 136 . . . amends section 667.5, subdivision
(b) to limit its prior prison term enhancement to only prior prison
terms for sexually violent offenses, as defined in Welfare and
Institutions Code section 6600, subdivision (b).” (People v.
Jennings (2019) 42 Cal.App.5th 664, 681.)
3
section 1385 to strike the special circumstance allegations to
“allow [the] Court to impose a life-term with the possibility of
parole.” He claimed the court could do so because his offense was
committed before the passage of Proposition 115. 4
The People objected and argued that section 1172.75 does
not apply to respondent because he is currently sentenced to
death. They contended respondent’s petition was an
impermissible collateral attack on that sentence, which can be
challenged only by a petition for a writ of habeas corpus under
section 1509.
After taking the matter under submission, in October 2024
the trial court determined that respondent is eligible for
resentencing. It reasoned: “Jurisdiction was given to courts to
recall and resentence under [section] 1172.75. The jurisdiction
does not conflict with the limitations imposed by [section] 1509
because this is not a collateral attack or even an attack. This was
not a separate action filed by [respondent], and there is no error,
illegality, or unauthorized sentence claimed. The Legislature
4 After respondent’s conviction, “Proposition 115, the ‘Crime
Victims Justice Reform Act,’ changed criminal law in several
respects on June 6, 1990.” (Tapia v. Superior Court (1991) 53
Cal.3d 282, 286.) It added section 1385.1 to the Penal Code,
which provides: “Notwithstanding Section 1385 or any other
provision of law, a judge shall not strike or dismiss any special
circumstance which is admitted by a plea of guilty or nolo
contendere or is found by a jury or court as provided in Sections
190.1 to 190.5, inclusive.” The Supreme Court stated, “[A]s to
most of Proposition 115’s provisions we see no reason to depart
from the ordinary rule of construction that new statutes are
intended to operate prospectively.” (Tapia, at p. 287.)
4
simply extended jurisdiction to a select group of individuals to
require resentencing for an otherwise lawful sentence at the time
it was imposed. There are no cases holding that such recall and
resentencing statutes constitute a collateral attack.”
At a subsequent hearing, the trial court vacated
respondent’s entire sentence and said that it would resentence
him “at a later time.” The trial court’s reasoning exalted form
over substance. Regardless of how the section 1172.75
proceeding was initiated, it was, and is, a collateral attack on the
judgment of death. (See discussion at pp. 14-18, post.)
Section 1172.75
Section 1172.75 was enacted in 2021 and became effective
on January 1, 2022. (Stats.2021, ch 728, § 3.) It provides: “Any
sentence enhancement that was imposed prior to January 1,
2020, pursuant to subdivision (b) of Section 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent
offense as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code is legally invalid.” (§ 1172.75,
subd. (a).)
“A defendant serving a term for a judgment that includes a
now-invalid enhancement is entitled to resentencing. (§ 1172.75,
subds. (a), (c).) To facilitate the process, the statute directs
California's Department of Corrections and Rehabilitation . . . to
‘identify those persons in their custody currently serving a term
for a judgment that includes an enhancement described in
subdivision (a).’ (Id., subd. (b).) Upon receiving that information,
the sentencing court must ‘review the judgment and verify that
the current judgment includes a sentencing enhancement
described in subdivision (a).’ (Id., subd. (c).) ‘If the court
determines that the current judgment includes an enhancement
described in subdivision (a), the court shall recall the sentence
5
and resentence the defendant.’ (Ibid.)” (People v. Rhodius (2025)
17 Cal.5th 1050, 1055 (Rhodius).)
“Section 1172.75, subdivision (d) sets forth detailed
instructions for resentencing once a sentence has been
recalled. . . . [S]ubdivision (d) specifies: ‘Resentencing pursuant
to this section shall 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. . . .’ (Id., subd. (d)(1).) The trial court must ‘apply the
sentencing rules of the Judicial Council’ as well as ‘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.’ (Id., subd. (d)(2).) In addition,
the court may ‘consider postconviction factors, including, but not
limited to, the disciplinary record and record of rehabilitation of
the defendant while incarcerated, evidence that reflects whether
age, time served, and diminished physical condition, if any, have
reduced the defendant's risk for future violence, and evidence
that reflects that circumstances have changed since the original
sentencing so that continued incarceration is no longer in the
interest of justice.’ (Id., subd. (d)(3).)” (Rhodius, supra, 17
Cal.5th at p. 1055.)
Appealability of Order Recalling Respondent’s Sentence
“The prosecution's right to appeal in a criminal case is
strictly limited by statute. [Citation.] Long-standing authority
requires adherence to these limits even though [] ‘the People may
thereby suffer a wrong without a remedy.’ [Citation.] The
circumstances allowing a People's appeal are enumerated in
section 1238.” (People v. Chacon (2007) 40 Cal.4th 558, 564.)
6
The People contend the trial court’s order recalling
respondent’s sentence is appealable under section 1238,
subdivision (a)(5), which provides that the People may take an
appeal from “[a]n order made after judgment, affecting the
substantial rights of the people.” “‘“[T]o affect the People’s
substantial rights[,] an order ‘must in some way affect the
judgment or its enforcement or hamper the further prosecution of
the particular proceeding in which it is made.’” [Citation.]’
[Citations.] [¶] Applying this standard, our courts have
generally held that section 1238, subdivision (a)(5) authorizes the
People to appeal orders that affect the defendant’s sentence or
the timing of his or her release. [Citations.]” (In re Anthony
(2015) 236 Cal.App.4th 204, 211-212.)
The trial court’s order recalling respondent’s sentence did
not merely “affect” his sentence; it vacated the entire sentence.
(People v. Rogers (2025) 108 Cal.App.5th 340, 360 (Rogers) [“A
recall ‘effectively vacate[s] [the defendant]’s original sentence and
commitment’”].) After a defendant’s sentence has been recalled,
the trial court must resentence him. Section 1172.75, subdivision
(c) provides that, if the trial court determines that the judgment
includes an invalid section 667.5, subdivision (b) enhancement,
“the court shall recall the sentence and resentence the
defendant.” (Italics added.) In other words, the recall of the
defendant’s sentence automatically results in the resentencing of
the defendant.
Respondent argues that “[t]he recall of a sentence does
not, by itself, affect a substantial right of the People.” (Bold and
italics deleted.) In support of his argument, he cites People v.
Griggs (2025) 109 Cal.App.5th 1231 (Griggs). There, the People
appealed an order “recalling defendant’s sentence . . . under
7
section 1172.1 and assigning the matter for a resentencing
hearing.” (Id., at p. 1233.) The People contended the order was
appealable under section 1238, subdivision (a)(5) as an order
after judgment affecting the substantial rights of the People.
Section 1172.1, subdivision (a)(1) provides that, under some
circumstances, “the court may [not shall], on its own motion, . . .
recall the [defendant’s] sentence and commitment previously
ordered and resentence the defendant in the same manner as if
they had not previously been sentenced . . . .” (Italics added.)
The Griggs court concluded that the recall order was not
appealable because it “merely permits the hearing at which the
sentencing court will ultimately decide whether defendant’s
sentence will change; it does not affect the exercise of the court’s
discretion.” (Griggs, supra, 109 Cal.App.5th at p. 1237.)
Unlike Griggs, here the trial court’s order vacating
respondent’s sentence did not “merely permit” a resentencing
hearing. It required a resentencing hearing at which the court’s
exercise of its discretion will be affected. The resentencing “shall
result in a lesser sentence than the one originally imposed . . .
unless the court finds by clear and convincing evidence that
imposing a lesser sentence would endanger public safety.”
(§ 1172.75, subd. (d)(1).)
People v. Montellano (2019) 39 Cal.App.5th 148
(Montellano), is also distinguishable. There, the appellate court
held that a postjudgment order finding the defendant eligible for
resentencing under section 1170.126 was not appealable. The
court concluded that the “eligibility determination did not affect
the substantial rights of the People by altering the underlying
8
judgment, its enforcement, or the defendant's relationship to it
. . . .” 5 (Montellano, at p. 151.)
The Montellano court reasoned: “[A] trial court’s
adjudication of a petition for resentencing under section 1170.126
requires a two-step process. In the first step, defendant bears the
burden of demonstrating eligibility. If the defendant satisfies his
or her burden, the burden then shifts to the prosecution, in the
second step, to demonstrate that the defendant is unsuitable for
release. Resentencing, however, occurs only after the second step
is completed and only if the trial court determines that the
defendant does not pose an unreasonable risk to public safety.”
(Montellano, supra, 39 Cal.App.5th at p. 156.) Section 1170.126,
subd. (f) provides: “Upon receiving a petition for recall of sentence
under this section, the court shall determine whether the
petitioner satisfies the criteria in subdivision (e). If the petitioner
satisfies the criteria in subdivision (e), the petitioner shall be
resentenced . . . unless the court, in its discretion, determines
that resentencing the petitioner would pose an unreasonable risk
of danger to public safety.” (Italics added.)
Unlike section 1170.126, section 1172.75 requires the recall
of the sentence and the resentencing of the defendant if “the
current judgment includes an [invalid] enhancement” under
section 667.5, subdivision (b). (§ 1172.75, subd. (c).) The court
cannot avoid resentencing by determining that it would pose an
5 Montellano disagreed with People v. Superior Court
(Martinez) (2014) 225 Cal.App.4th 979, which concluded that “the
initial eligibility determination” under section 1170.126 is
appealable as “‘[a]n order made after judgment, affecting the
substantial rights of the people.’ [(§ 1238, subd. (a)(5).)]” (Id., at
p. 987.)
9
unreasonable risk of danger to public safety. The court must
resentence the defendant, but it is not required to impose a lesser
sentence if it “finds by clear and convincing evidence” that doing
so “would endanger public safety.” (Id., subd. (d)(1).)
Accordingly, the People need not wait to appeal until after
respondent has been resentenced.
Did the Legislature Intend that a Defendant Sentenced to Death
Be Eligible for Recall and Resentencing under Section 1172.75?
Respondent’s eligibility for recall and resentencing under
section 1172.75 involves a matter of statutory interpretation.
“Accordingly, we begin with an examination of the relevant
provisions, guided by familiar principles. ‘“‘We first examine the
statutory language, giving it a plain and commonsense meaning.
We do not examine that language in isolation, but in the context
of the statutory framework as a whole in order to determine its
scope and purpose and to harmonize the various parts of the
enactment. If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’”’
[Citation.]” (People v. Brown (2023) 14 Cal.5th 530, 536 (Brown).)
“Issues of statutory construction are reviewed de novo.”
(Brown, supra, 14 Cal.5th at p. 536.) “‘[O]ur primary guiding
principle is to ascertain the intent of the Legislature to effectuate
the purpose of the law.’” (Boston v. Penny Lane Centers, Inc.
(2009) 170 Cal.App.4th 936, 950.)
In ascertaining the Legislature’s intent, “[w]e do not view
[the statute] wearing ‘horse blinders.’” (People v. Lara (2025) 115
10
Cal.App.5th 484, 488.) To do so would be an application of the
discredited theory of “mechanical jurisprudence” as explicated by
Dean Roscoe Pound in 1908. (Reprinted in Aldisert, The Judicial
Process (1976) Mechanical Jurisprudence, ch. 2, pp. 303-313.) We
view the entirety of the statutes and seek to achieve an end
which is neither arbitrary nor irrational.
Section 1171.1, the predecessor of section 1172.75, was
added to the Penal Code in 2021 by Senate Bill No. 483. (Stats.
2021, ch. 728, § 3.) It became effective on January 1, 2022. 6
Section 1171.1 was placed in Article 1 of Chapter 4.5 of Title 7 of
Part 2 of the Penal Code. Article 1 includes section 1170,
subdivision (a)(3), which provides, “Nothing in this article shall
affect any provision of law that imposes the death penalty . . . .”
Based on section 1170, subdivision (a)(3), it appears the
legislature originally did not intend that section 1172.75 would
apply to death penalty cases. Moreover, the statute’s application
to the death penalty would appear to conflict with section
1172.75, subdivision (d)(1), which provides, “Resentencing
pursuant to this section shall result in a lesser sentence than the
one originally imposed as a result of the elimination of the
repealed enhancement . . . .” Where, as here, the death penalty
was originally imposed, the elimination of a one-year prior prison
term enhancement would not “result in a lesser sentence than
the one originally imposed.” (Ibid.) “Obviously death is
qualitatively different from all other punishments and is the
6 “‘Effective June 30, 2022, the Legislature renumbered
section 1171.1 to 1172.75’ without any substantive changes
[(Stats. 2022, ch. 58, § 12)].” (People v. Mayberry (2024) 102
Cal.App.5th 665, 669.)
11
‘ultimate penalty’ in the sense of the most severe penalty the law
can impose.” (People v. Hernandez (1988) 47 Cal.3d 315, 362.)
We also question whether someone sentenced to death with
a “one-year” prior can constitutionally escape the death penalty
pursuant to section 1172.75, while a person sentenced to death
without such a prior has no comparable remedy. If the sentence
is death, a one-year prior is meaningless. One would think that,
to avoid this inequality of treatment, the Legislature would not
have intended to apply section 1172.75 to death sentences.
But in 2024, Senate Bill No. 285 amended section 1172.75
to add subdivision (f), which arguably manifests a legislative
intent to apply section 1172.75 to death sentences so long as the
defendant was not convicted of a sexually violent offense. The
amendment became effective on January 1, 2025. (Stats.2024,
ch. 979, § 2.) 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), is not eligible for
recall and resentencing under this section. This subdivision does
not apply retroactively.” (Italics added.) If persons sentenced to
death are not eligible for section 1172.75 relief, there would have
been no need for subdivision (f) to specifically deny relief to
persons sentenced to death and convicted of a sexually violent
offense.
In People v. Dixon (2025) 112 Cal.App.5th 236, 248 (Dixon),
Division Seven of the Second Appellate District said: “[T]he
enactment of section 1172.75, subdivision (f), is significant: It
12
shows the Legislature thought it necessary to add the new
subdivision because the Legislature recognized in 2024 that
section 1172.75, as originally drafted, applied to defendants . . .
sentenced to death.” “Therefore, the pre-2025 version of section
1172.75 applied to persons ‘currently serving a term for a
judgment’ (§ 1172.75, subd. (b)) that included an invalid prior
prison term enhancement, including those . . . whose judgment
includes a death sentence.” (Id., at p. 247.) 7
The People argue that “respondent is not entitled to relief
pursuant to section 1172.75 because [he] is not currently serving
a sentence based on a section 667.5(b) enhancement.”
(Capitalization omitted.) Instead, “[r]espondent is currently
serving a judgment of death to which no enhancements are
attached.”
The People’s argument may, at first blush, conflict with
subdivision (f)’s apparent recognition that a person in
respondent’s position may be entitled to a “full resentencing.” “A
defendant serving a term for a judgment that includes a now-
invalid enhancement is entitled to resentencing. (§ 1172.75,
subds. (a), (c).)” 8 (Rhodius, supra, 17 Cal.5th at p. 1055, italics
7 The Supreme Court granted review in Dixon. It stated
that, “[p]ending review, the opinion of the Court of Appeal . . .
may be cited . . . for its persuasive value . . . .” (People v. Dixon
(Oct. 22, 2025, No. S292223) 2025 WL 2983057, at *1.) The
Supreme Court denied “requests for an order directing partial
depublication of the opinion . . . .” (Ibid.)
8Section 1172.75, subdivision (c) provides, “If the court
determines that the current judgment includes an enhancement
described in subdivision (a), the court shall recall the sentence
and resentence the defendant.” (Italics added.)
13
added.) Respondent is currently serving a term for a judgment
that includes such an enhancement. “‘The judgment is the
sentence,’” i.e., the entire sentence, not just the death-penalty
portion of the sentence. (People v. Flores (1974) 12 Cal.3d 85, 93,
fn. 6.) “[W]e deem there to be no distinction in the meaning of
the phrases ‘passing sentence,’ ‘pronouncing sentence’ and
‘pronouncing judgment.’ All are deemed to occur at such time as
the court imposes sentence, which act constitutes the rendition of
judgment.” (Ibid.) Neither Rhodius nor Flores involved the
death penalty. These opinions are “fairly distinguishable” and
are not controlling. (See People v. Triggs (1973) 8 Cal.3d 884,
891, overruled on other grounds in People v. Lilienthal (1978) 22
Cal.3d 891, 896.)
Respondent, who has not been convicted of a sexually
violent offense, claims that subdivision (f) shows he is eligible for
recall and resentencing as to his death sentence. But the
Legislature has not explicitly said that a person in his situation
is eligible for such relief. We need not determine whether the
legislature intended to authorize the recall of a death sentence.
Irrespective of its intent, respondent’s theory is a “bridge too far”
because it would eviscerate section 1509.
Respondent’s Death Sentence Cannot be Recalled
Because Section 1509 Prevails over Section 1172.75
Section 1509, subdivision (a) provides, “A writ of habeas
corpus . . . is the exclusive procedure for collateral attack on a
judgment of death.” In Dixon, supra, 112 Cal.App.5th 236, the
court concluded that section 1509 prevails over section 1172.75.
Dixon was convicted of first degree murder and two rapes.
He was sentenced to death on the murder conviction. “The
14
court . . . imposed and stayed execution of . . . four one-year prior
prison term enhancements under Penal Code section 667.5,
former subdivision (b).” (Dixon, supra, 112 Cal.App.5th at p.
240.) Although Dixon had been convicted of a sexually violent
offense, section 1172.75, subdivision (f) did not “apply to [him]
because his judgment was reviewed and verified by the superior
court before January 1, 2025.” (Dixon, at p. 248.)
The Court of Appeal “conclude[d] that the superior court
had jurisdiction to resentence Dixon [pursuant to section
1172.75] and that the superior court may resentence him on the
noncapital portions of his sentence but not on the death
sentence.” (Dixon, supra, 112 Cal.App.5th at p. 240, rev.gr.) The
court reasoned as follows: “The ‘exclusive procedure for collateral
attack on a judgment of death’ is a petition for writ of habeas
corpus under section 1509. (§ 1509, subd. (a).) Section 1509 was
enacted by a voter initiative, the Death Penalty Reform and
Savings Act of 2016 (Proposition 66). Proposition 66 stated it
may be amended by the Legislature only by a statute that passes
each house of the Legislature by a three-fourths vote. (Voter
Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 66, §
20, p. 218;[ 9] see Cal. Const., art. II, § 10, subd. (c) [‘The
Legislature may amend or repeal an initiative statute by another
statute that becomes effective only when approved by the electors
unless the initiative statute permits amendment or repeal
without the electors’ approval.’].) Because Senate Bill No. 483,
which enacted section 1172.75 [in 2021], passed the Assembly
and the Senate with less than a three-fourths vote, it cannot have
amended Proposition 66.” (Dixon, at p. 249.)
9The Proposition 66 Voter Information Guide is hereafter
referred to as the “Ballot Pamphlet.”
15
The key issue is whether a section 1172.75 proceeding to
recall a death sentence and resentence the defendant is a
collateral attack on the judgment of death. “When a judgment is
attacked in a manner other than by a proceeding in the original
action to have the judgment vacated, reversed, or modified, . . .
the attack is a ‘collateral attack.’” (50 Corpus Juris Secundum
(2025) Judgments § 700.) “A direct attack upon a judgment or
order is usually one made in the same proceeding by appeal . . . .
A collateral attack is an attempt to avoid the effect of a judgment
or order made in some other proceeding.” (Rico v. Nasser Bros.
Realty Co. (1943) 58 Cal.App.2d 878, 882; accord, F.E.V. v. City of
Anaheim (2017) 15 Cal.App.5th 462, 471.)
Respondent argues, “[A section] 1172.75 proceeding is not a
collateral attack under California law. It is neither collateral, as
this proceeding[] arises from within the criminal case itself, nor is
it an attack, as it is court-initiated[] and does not challenge the
legality of either Respondent’s conviction or sentence.”
We disagree. Regardless of who initiated the section
1172.75 proceeding in the present case, it is an attack on the
judgment of death. Respondent fully participated in the
proceeding and vigorously challenged the death sentence. In its
ruling the trial court noted: “[Respondent] claims that he is
entitled to a full resentencing based upon Penal Code section
1172.75 and asks the Court to strike all of the special
circumstances from his conviction . . . . [Respondent] filed a
Memorandum in support of Resentencing asking for a sentence of
no greater than life without parole based upon his youth at the
time of the crime, childhood trauma, neglect and abuse suffered,
16
and his now-known cognitive impairments.” 10 The trial court’s
recall of respondent’s entire sentence nullified the judgment of
death and required that respondent be resentenced on the two
special circumstance murder convictions. (Rogers, supra, 108
Cal.App.5th at pp. 360, 364.)
The attack on the judgment of death was collateral to the
original criminal action against respondent. That action ended
after the California Supreme Court had affirmed the judgment of
death and respondent had exhausted his federal remedies. “A
California state court judgment of death becomes ‘final’ upon the
United States Supreme Court's denial of a capital defendant's
petition for writ of certiorari filed by the defendant after our
affirmance of the judgment of death, or upon expiration of the
time in which the defendant may seek certiorari in the federal
high court.” (In re Zamudio Jimenez (2010) 50 Cal.4th 951, 956.)
Moreover, the application of section 1172.75 to death
sentences is contrary to the electorate’s intent as indicated in the
official Ballot Pamphlet’s analysis of Proposition 66 and
argument in favor of the proposition. When interpreting a voter
initiative, “our ‘task is simply to interpret and apply the
initiative's language so as to effectuate the electorate’s intent.’”
(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) “‘When
the language is ambiguous, “we refer to other indicia of the
voters' intent, particularly the analyses and arguments contained
10During oral argument before this court, respondent’s
counsel said that, if we allow the trial court to resentence
respondent as to the judgment of death, respondent will request
that a sentence of 50 years to life be imposed for the two murder
convictions.
17
in the official ballot pamphlet.”. . .’” (People v. Briceno (2004) 34
Cal.4th 451, 459.)
“[W]e consider the Legislative Analyst's views because we
assume the voters considered them along with the other
materials in the ballot pamphlet.” (San Francisco Taxpayers
Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 580.) In his
report on Proposition 66, the legislative analyst stated that there
are “Two Ways to Challenge Death Sentences.” (Ballot
Pamphlet, p. 104.) One is by direct appeal to the California
Supreme Court, and the other is by a petition for a writ of habeas
corpus. (Ibid.) A voter who read the analysis would have
reasonably believed that a death sentence could not be challenged
by other means, such as a statute subsequently enacted by the
Legislature.
The argument in favor of Proposition 66 said the measure
“brings closure to the families of victims.” (Ballot Pamphlet, p.
108.) How could “closure” be achieved if years or even decades
after a judgment of death became final, the legislature could
abrogate a defendant’s death sentence by enacting a statute such
as section 1172.75? It is inconceivable that the voters intended to
allow a court to recall a death sentence and resentence the
defendant merely because the original sentence included an
invalid one-year enhancement for a prior prison term.
Disposition
The order recalling respondent’s death sentence is
reversed. The order recalling the noncapital portions of his
sentence is affirmed. The matter is remanded to the trial court
for resentencing on the noncapital portions. After the
resentencing has been completed, the trial court shall prepare an
18
amended abstract of judgment and send a certified copy to the
Department of Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
19
Paul W. Baelly, Judge
Superior Court County of Ventura
______________________________
Erik Nasarenko, District Attorney, Michelle J. Contois,
Deputy District Attorney, for Plaintiff and Appellant.
Cuauhtemoc Ortega, Federal Public Defender, Michael
Petersen and Jennifer Friedman, Deputy Federal Public
Defenders, for Defendant and Respondent.