Opinion

People v. Cain

Court
California Court of Appeal
Filed
Dec 8, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 37.4%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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