Filed 10/8/26 P. v. Brown CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089787
Plaintiff and Respondent,
(Super. Ct. No. BF129432A)
v.
MICHAEL CHARLES BROWN,
OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Dana Muhammad Ali,
Kenneth N. Sokoler, and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
In 2016, a jury convicted defendant Michael Charles Brown (defendant) of
numerous counts including murder committed during a rape or sodomy (Pen. Code,
§§ 187, subd. (a), 190.2, subd. (a)(17)(C), (D), count 1), attempted murder, assault with
intent to commit rape, robbery, kidnapping, and multiple sexual offenses and attempted
sexual offenses. (Undesignated statutory references are to the Penal Code.) The jury also
found true multiple enhancement allegations including two prior prison term
enhancements pursuant to section 667.5, former subdivision (b). The jury sentenced
defendant to death on the murder count (count 1), plus 310 years to life, plus 108 years
determinate.
In 2023, the matter was placed on calendar pursuant to section 1172.75. After the
parties submitted briefing, on May 9, 2025, the trial court granted the prosecution’s
request to dismiss the resentencing petition, stating, in part, “that capital sentences are
treated differently, that [section]1172.75 conflicts with and unconstitutionally amends
… section 1509,” “[s]ection 190.2[,] and Proposition 115,” and that “defendant is
ineligible for relief under … [s]ection 1172.75 because he[ is] pending execution on his
capital sentence, which he is not currently serving and cannot ever serve the determinate
sentence imposed with a prior … [s]ection 667.5[, subdivision ](b).”
Defendant now appeals from that order. On appeal, defendant contends the trial
court erred by failing to recall and resentence him pursuant to section 1172.75.
We conclude the appeal must be dismissed.
FACTUAL AND PROCEDURAL HISTORY
VERDICT AND ORIGINAL SENTENCE
In 2016, a jury convicted defendant of numerous counts including murder
committed during the commission or attempted commission of rape and sodomy (§§ 187,
subd. (a), 190.2, subd. (a)(17)(C), (D), count 1), attempted rape by force (§§ 664/261,
subd. (a), count 2), attempted murder (§§ 664/187, subd. (a), count 5), assault with intent
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to commit rape (§§ 220/261, subd. (a), count 6), robbery (§ 212.5, subd. (c), count 7),
attempted sodomy by force (§§ 664/286, subd. (c)(2), count 15), oral copulation by use of
force or injury (former § 288a, subd. (c)(2), counts 10, 18, & 22), rape by force (§ 261,
subd. (a)(2), count 23), sodomy by use of force or injury (§ 286, subd. (c)(2), count 24),
and sexual penetration by use of force (§ 289, subd. (a)(1), counts 3, 12, 13, & 25). The
jury also found true multiple enhancement allegations including two prior prison term
enhancements pursuant to section 667.5, former subdivision (b). The section 667.5,
former subdivision (b) enhancements were based on defendant serving terms in state or
felony prison for (1) taking a vehicle without the owner’s consent on or about March 3,
1997, in violation of Vehicle Code section 10851, subdivision (a), and (2) vehicular
manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(3)) on or about July 30,
2003. The jury sentenced defendant to death on the murder count (count 1), plus
310 years to life, plus 108 years determinate on the other counts and enhancements.
RESENTENCING PROCEEDINGS
In November 2023, after the passage of Senate Bill No. 483 (2021–2022 Reg.
Sess.) (Senate Bill 483), the trial court put the matter on calendar to set a hearing on a
petition for resentencing pursuant to section 1172.75. The court stated that any
enhancement imposed under Penal Code section 667.5, former subdivision (b), except for
any enhancement imposed for a prior conviction for a sexually violent offense as defined
in Welfare and Institutions Code section 6600, subdivision (b), had to be dismissed. The
court noted that defendant was convicted of some sexually violent offenses, including
violations under Penal Code sections 261, 286, 288, and 289.
In October 2024, defendant filed briefing requesting that the trial court strike the
invalid section 667.5, former subdivision (b) enhancement(s) and conduct a full
resentencing hearing “to apply current sentencing rules in consideration of mitigating
factors and the objective of ensuring equal justice and addressing systemic racial bias in
sentencing.” He argued section 1172.75 applies in capital cases, reasoning “nothing says
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it doesn’t.” He asserted the court could and should sentence him “for a base/principal
term other than … [c]ount 1, the murder with special circumstances, pursuant to
[section] 654 as amended by [Assembly Bill No.] 518 [(2021–2022 Reg. Sess.)].”
Defendant also asked the court to consider Senate Bill No. 81’s (2021–2022 Reg. Sess.)
amendments to section 1385 requiring the court, except when prohibited by statute, to
dismiss enhancements when it is in the furtherance of justice to do so, as well as Senate
Bill No. 1393’s (2017–2018 Reg. Sess.) changes to section 667, subdivision (a)(1)
providing courts discretion to strike prior serious felony enhancements. He also urged
the court to impose the low term in this case pursuant to section 1170 as amended by
Senate Bill No. 567 (2021–2022 Reg. Sess.) and Assembly Bill No. 124 (2021–2022
Reg. Sess.), to consider striking a strike pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, and to strike the death penalty and seat a new penalty phase jury.
He asked the court to “conduct a full resentencing hearing taking into account the
above-described ameliorative law changes, post-conviction factors and mitigating
circumstances.”
The People filed a “Request to Dismiss Defendant’s Petition/Motion for Recall
and Modification of Sentence ( … §1172.75).” The People argued that the petition must
be dismissed because the resentencing scheme pursuant to section 1172.75 does not apply
to capital cases where the exclusive procedure to collaterally attack the judgment of death
is section 1509, subdivision (a). Rather, they argued, “[i]f the [L]egislature meant
[c]apital sentences to be included and as an exemption to … [section] 1509 it would have
stated so expressly.” And, “[e]ven if the Legislature intended … [section] 1172.75 to
apply to capital sentences, the Legislature could not constitutionally achieve this result
with the procedures used to pass Senate Bill 483,” because section 1509 could not be
amended without “ ‘three-fourths of the membership of each house concurring,’ ” and
section 1172.75 failed to pass with a three-fourths majority. The People asserted that
Senate Bill No. 285 (2023–2024 Reg. Sess.) (Senate Bill 285), which added
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subdivision (f) to section 1172.75, “clarif[ied] capital cases are not included in the relief
available under … [section] 1172.75.” They asked the court to take notice of the court
files, records, and transcripts in case No. BF129432A.
Defendant filed a “statement on [Senate Bill] 285 (now codified as
[section] 1172.75[, subdivision (f))],” asserting this new provision is expressly not
retroactive and it did not affect his eligibility for resentencing. (Capitalization omitted.)
He argued his case had “ ‘been reviewed and verified by a sentencing court to determine
that [he] is serving a term that includes a legally invalid sentence’ ” and it has “been in
the procedural posture of sentence recall.” He also filed a reply to the People’s
opposition asserting that section 1172.75 is a resentencing scheme and it does not amount
to a “direct or collateral attack” because it does not attack the legal sufficiency of the
underlying convictions or reach questions of factual innocence. He asserted
section 1172.75 should be broadly construed in his favor. He also argued that Senate
Bill 285 is unconstitutional because it “violates the Due Process Clause by taking away a
right previously granted, on the eve of the conclusion of litigation” and it “violates the
Equal Protection Clause.”
In their reply brief, the People asserted that defense counsel petitioned the court to
have the hearing on defendant’s petition/motion for recall and modification of sentence—
which was originally set for November 28, 2023—continued to January 23, 2024,
April 3, 2024, May 14, 2024, and August 21, 2024. They asserted, the hearing date was
set for May 9, 2025, but “[t]he law is clear that as of January 1, 2025, capital cases, such
as [d]efendant’s, are excluded from resentencing where the [d]efendant has certain
specified legally invalid enhancements.” Accordingly, defendant’s petition “is beyond
the permissible timeframe and not eligible for resentencing.”
On May 9, 2025, the trial court held a hearing on the People’s request to dismiss
defendant’s petition/motion for recall and modification of sentence pursuant to
section 1172.75. At the outset of the hearing, the court noted it had “read and considered
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everything” and “looked at the applicable points and authorities.” The court stated its
tentative:
“I do find that the request to dismiss … defendant’s petition/motion
is persuasive. My tentative is [to] grant that request to dismiss. And
… defendant’s opposition, the focus seems to be more about whether
[section] 1172.75 still applies to [defendant’s] case after the January 1st
cutoff date .… Even assuming that [section] 1172.75 is still applicable,
meaning that I find good cause to say that the January 1st date does not
apply to [defendant’s] case, that still does not address the many
[c]onstitutional issues and other arguments raised by the People.
“The fact that capital sentences are treated differently, that
[section] 1172.75 conflicts with and unconstitutionally amends …
[s]ection 1509, that … [s]ection 1172.75 has been declared by the
Legislature that it does not apply to capital cases, … [s]ection 1172.75
would unconstitutionally amend and conflict with … [s]ection 190.2
and Proposition 115. [D]efendant is ineligible for relief under …
[s]ection 1172.75 because he’s pending execution on his capital sentence,
which he is not currently serving and cannot ever serve the determinate
sentence imposed with a prior … [s]ection 667.5[, subdivision ](b). I find
those arguments and authorities persuasive.”
The trial court stated it was “going to adopt the analysis and reasoning of the
points and authorities in the People’s request,” and it granted the request to dismiss the
section 1172.75 petition.
DISCUSSION
Defendant now challenges the trial court’s dismissal of his request for recall and
resentencing pursuant to section 1172.75. For the reasons that follow, we conclude the
court properly dismissed the petition and, relatedly, that the appeal must be dismissed.
A. Standard of Review
“Issues of statutory construction are reviewed de novo.” (People v. Brown (2023)
14 Cal.5th 530, 536.) “[W]e 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
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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.’ ” ’ ” (Ibid.)
B. Applicable Law
In October 2021, the Governor signed Senate Bill No. 483 (2021–2022 Reg. Sess.)
(Senate Bill 483), effective on January 1, 2022, which added section 1171.1 to the Penal
Code, subsequently renumbered as section 1172.75. Section 1172.75 establishes a
mechanism to provide certain affected defendants an avenue for relief from now-invalid
prison prior enhancements.
Section 1172.75, subdivision (a) declares: “Any sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except
for any enhancement imposed for a prior conviction for a sexually violent offense … is
legally invalid.” Subdivision (b) directs the Secretary of the Department of Corrections
and Rehabilitation (CDCR) and the correctional administrator of each county to “identify
those persons in their custody currently serving a term for a judgment” that includes a
now legally invalid prior prison enhancement, and to provide the names of such persons,
their dates of birth, and the relevant case numbers or docket numbers to the sentencing
court that imposed the enhancement. (§ 1172.75, subd. (b), italics added.) After the
court receives the information included in subdivision (b) of section 1172.75 from the
CDCR and the county correctional administrator, “the court shall review the judgment
and verify that the current judgment includes a sentencing enhancement described in
subdivision (a).” (§ 1172.75, subd. (c), italics added; see Stats. 2021, ch. 728, § 1 [“it is
the intent of the Legislature to retroactively apply … Senate Bill [No.] 136 of the 2019–
20 Regular Session[, which amended section 667.5, subdivision (b),] … to all persons
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currently serving a term of incarceration in jail or prison for these repealed sentence
enhancements” (italics added)].) “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.” (§ 1172.75, subd. (c), italics added.)
When resentencing a defendant under section 1172.75, the court must “apply the
sentencing rules of the Judicial Council and apply any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) “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).) “Unless the court originally imposed the upper term, the court may
not impose a sentence exceeding the middle term unless there are circumstances in
aggravation that justify the imposition of a term of imprisonment exceeding the middle
term, and those facts have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (Id.,
subd. (d)(4).)
Section 1172.75 was amended by the Legislature, effective January 1, 2025,
pursuant to Senate Bill 285. (Stats. 2024, ch. 979, § 2.) Accordingly, “[c]ommencing on
January 1, 2025, an individual who has been convicted of a sexually violent offense as
defined in subdivision (b) of [s]ection 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.” (§ 1172.75, subd. (f).)
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Relevant here, several courts have considered the application of section 1172.75 in
cases in which the defendant has been sentenced to the death penalty. (See, e.g., People
v. Dixon (2025) 112 Cal.App.5th 236, review granted Oct. 22, 2025, S292223 (Dixon);
People v. Millsap (2025) 114 Cal.App.5th 368 (Millsap); People v. Cain (2025) 116
Cal.App.5th 917, review granted Feb. 18, 2026, S294810 (Cain).) In Dixon, the CDCR
identified the defendant, who was previously sentenced to death on a murder conviction,
as an individual potentially eligible for recall and resentencing of his prior prison term
enhancements pursuant to section 1172.75. (Dixon, at p. 241.) The superior court issued
an order stating Dixon was not eligible for resentencing because his section 667.5
enhancement was stayed and would be permanently stayed. (Dixon, at pp. 241–242.)
Dixon rejected the People’s argument that the superior court lacked jurisdiction to
resentence Dixon because his automatic appeal from the judgment was still pending in
the Supreme Court. (Dixon, supra, 112 Cal.App.5th at pp. 244–245, rev. granted.)
Dixon reasoned “[u]nder the plain language of section 1172.75, he is entitled to have the
court recall his sentence and resentence him on the non-death portions of his sentence,”
given he is a person “ ‘currently serving a term’ ” that includes an invalid enhancement,
which the superior court verified. (Id. at p. 244.) Additionally, Dixon explained,
“[i]nterpreting section 1172.75 to prohibit the superior court from resentencing a
defendant with a pending appeal would conflict with the statute’s mandate to do so by
December 31, 2023.” (Id. at pp. 245–246.) The Dixon court relied on People v. Velasco
(2023) 97 Cal.App.5th 663 (Velasco) in reaching its conclusion. (Dixon, at pp. 244–245.)
In Velasco, the defendant had appealed from a resentencing order made pursuant
to section 1172.1 after his judgment had become final. (See People v. Velasco (Nov. 29,
2023, D080603) 2023 WL 8250473 [nonpub. opn.]; see also Velasco, supra, 97
Cal.App.5th at p. 668, fn. 3 [judicially noticing case No. D080603 “because the court
records ... form[] the basis for the People’s jurisdictional argument”].) While that appeal
remained pending, the trial court held a section 1172.75 hearing, struck the defendant’s
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one-year prison prior, and resentenced him to a lower term of imprisonment. In resolving
the “threshold issue” of whether the trial court retained jurisdiction to resentence Velasco
pursuant to section 1172.75 after he filed a valid notice of appeal in case No. D080603,
the Velasco court held “section 1172.75 presents an exception to the general rule and
vests the trial court with jurisdiction to conduct a resentencing hearing while an appeal is
pending.” (Velasco, at pp. 669, 671.) Velasco focused on the time limitations placed on
the CDCR to identify eligible persons and on the trial court’s resentencing discretion,
reasoning these limitations would often fall during the pendency of an appeal; so, the
time limitations would be rendered “surplusage” if section 1172.75 was not read to
provide for trial court jurisdiction. (Velasco, at p. 672.) Specifically, Velasco held: “If
we were to apply the general rule divesting the trial court of jurisdiction, a significant
percentage of the individuals to whom the statute is expressly directed would be unable to
timely benefit from this ameliorative statute. We cannot conclude that an interpretation
which frustrates the intent of the Legislature and renders certain provisions surplusage is
the correct one.” (Id. at p. 673.)
Dixon held the reasoning in Velasco “applie[d] with equal force … where Dixon’s
pending appeal is an automatic appeal to the Supreme Court.” (Dixon, supra, 112
Cal.App.5th at p. 245, rev. granted.) Dixon specified that section 1172.75 authorized the
superior court to resentence Dixon on the noncapital portions of his sentence but not the
death sentence because section 1509, which was enacted by a voter initiative (Prop. 66),
provides the exclusive procedure for a collateral attack on a death judgment is a petition
for habeas corpus. (Dixon, at pp. 247–249.) Specifically, Dixon advised that the superior
court could not “reduce Dixon’s death sentence to life without the possibility of parole,”
but “[b]ecause the pre-2025 version of section 1172.75 did not exclude persons serving
death sentences, the superior court should have stricken Dixon’s four prior prison term
enhancements. In addition, the court had discretion to resentence Dixon on the stayed
one-year firearm enhancement under section 12022, subdivision (b)(1), and the
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two stayed consecutive terms of 25 years to life on the rape convictions.” (Dixon, at
pp. 248, 249.) Dixon reversed the superior court’s order and directed the court to strike
Dixon’s prior prison term enhancements and resentence Dixon on his rape convictions
and firearm enhancement pursuant to section 1172.75. (Dixon, at p. 250.)
In Cain, supra, 116 Cal.App.5th 917, review granted, the defendant was convicted
of two murders, for which he was sentenced to death, and other felonies and
enhancements for which he received consecutive determinate terms. (Cain, at p. 923.)
This included a one-year enhancement for a prior prison term under section 667.5. (Cain,
at p. 923.) The defendant’s sentence was affirmed on direct appeal, and his habeas
petition was denied. (Ibid.) Decades later, the defendant filed a resentencing petition
under section 1172.75, asserting the one-year enhancement was made invalid by statutory
changes. (Cain, at p. 923.) The trial court found it had jurisdiction to conduct a full
resentencing, which included resentencing on the death penalty. (Id. at p. 924.) The
People appealed, and the Second District reversed the order recalling the death sentence.
(Id. at p. 933.)
Cain rejected the respondent’s argument that a section 1172.75 proceeding is not a
collateral attack under California law; rather, it held the section 1172.75 proceeding in
that case was “an attack on the judgment of death.” (Cain, supra, 116 Cal.App.5th at
pp. 931–932.) Citing the ballot pamphlet in favor of Proposition 66 (which enacted
section 1509), Cain stated: “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.” (Cain, at
pp. 932, 933) Rather, “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.” (Id. at p. 922.) Nonetheless, Cain held the respondent could “seek modification
of the determinate portion of the judgment which is insignificant.” (Ibid.) Accordingly,
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Cain affirmed the order “recalling the noncapital portions of [the respondent’s]
sentence,” and remanded the matter to the trial court “for resentencing on the noncapital
portions.” (Id. at p. 933.)
Millsap, supra, 114 Cal.App.5th 368 came to a different conclusion. In Millsap,
the defendant was convicted of eight first degree special-circumstance murders and more
than a dozen violent crimes and the jury found firearm and/or gang enhancement
allegations true as to each count. (Millsap, at pp. 373–374.) The defendant was
sentenced to eight death sentences and over 100 years to life, including a single one-year
term for serving a prior prison term (§ 667.5, former subd. (b)), to be served consecutive
to his death sentences. (Millsap, at p. 374.) In 2023, the superior court considered
resentencing the defendant under section 1172.25, but it declined to vacate the
section 667.5 sentence and resentence, concluding it lacked jurisdiction to modify the
sentence. (Millsap, at p. 374.)
On appeal, the Millsap court concluded the superior court properly declined to
resentence the defendant. (Millsap, supra, 114 Cal.App.5th at p. 375.) Millsap
explained: “Filing of a notice of appeal ‘ “ ‘vests jurisdiction of the cause in the appellate
court until determination of the appeal and issuance of the remittitur’ [citation], thereby
divesting the trial court of jurisdiction over anything affecting the judgment.” ’
[Citations.] This rule applies to automatic capital appeals before the Supreme Court
[citation] and ‘prevents the trial court from rendering an appeal futile by conducting
proceedings that may affect or alter the judgment on appeal.’ ” (Millsap, at p. 375.)
Millsap explained that trial courts “interfere with the Supreme Court’s exclusive
jurisdiction when they ‘overrule or set aside’ a death penalty judgment or rule ‘on any
ground appearing upon the face of the record on appeal, and which is raised or could be
raised on said appeal.’ ” (Id. at p. 379.) Additionally, Millsap noted, “[a]s amended,
section 667.5 presents an issue that may be raised before the Supreme Court. Had the
trial court stricken the now-invalidated enhancement pending disposition of [the]
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defendant’s direct appeal, it would have ‘interfered’ with the court’s jurisdiction over the
judgment. Resentencing that would follow would also interfere with the court’s
jurisdiction by changing other portions of the judgment.” (Id. at p. 380.) Millsap
clarified that Velasco did “not control the outcome of this case,” noting “ ‘ “[c]apital
cases are different.” They are exclusively within our [Supreme Court’s] appellate
jurisdiction.’ ” (Millsap, at pp. 377–378.)
Millsap reasoned, “[b]ecause section 1172.75 does not speak directly to whether
trial courts may resentence defendants in capital cases,” we turn to “ ‘other features of the
statute’ for guidance.” (Millsap, supra, 114 Cal.App.5th at p. 381.) Millsap noted that
we presume the Legislature understood the scope of the California Supreme Court’s
exclusive jurisdiction over capital cases and that the “ ‘automatic appeal’ ” process in
these cases takes “ ‘the entire judgment’ ” to the Supreme Court. (Ibid.) So, “the
Legislature did not need to expressly exempt capital judgments from section 1172.75
resentencing.” (Ibid.) Millsap also noted the legislative history of section 1172.75
clarifies that the Legislature was motivated by “ ‘reducing incarceration and thereby
reducing prison expenditures and overcrowding’ ” through “ ‘full resentencing
procedures.’ ” (Id. at p. 382.) Millsap continued that “[r]esentencing in this type of case
would not further these purposes or the intent underlying section 1172.75,” given that
“any order reducing [the defendant’s sentences for his] noncapital offenses will not result
in a reduced period of incarceration, reduced prison overcrowding, or reduced prison
expenditures.” (Ibid.) Millsap also questioned whether a trial court could make the
requisite assessment of factors to consider at resentencing, namely a “risk assessment
from a criminal history that is nonfinal, currently disputed, and subject to material change
by the Supreme Court,” noting “[i]f the court subsequently modifies defendant’s
convictions to his benefit, resentencing on remand may take those modifications into
account.” (Ibid.)
13.
Millsap further noted that the issue of the Supreme Court’s exclusive jurisdiction
over capital appeals was not raised in Dixon, so Dixon did not address whether the
judgment over which the Supreme Court has exclusive jurisdiction can be divided for
partial resentencing. (Millsap, supra, 114 Cal.App.5th at p. 383.) Importantly, Millsap
observed “[n]either Dixon, nor [the] defendant in [its] case, provides authority for
dividing the judgment for this purpose.” (Ibid.) Millsap held “the capital judgment over
which the Supreme Court has exclusive jurisdiction is indivisible and includes
convictions and sentences for noncapital as well as capital offenses.” (Ibid.)
Accordingly, Millsap held, “[t]o the extent the Legislature vested concurrent
[section] 1172.75 resentencing jurisdiction pending appeal, that jurisdiction does not
extend to a capital judgment on direct appeal.” (Ibid.) Millsap, thus, affirmed the trial
court’s order denying resentencing without prejudice to revisiting the issue depending on
the Supreme Court’s decision. (Id. at pp. 374, 383.)
C. Analysis
Defendant argues the trial court erred in dismissing his petition and finding that
section 1172.75 unconstitutionally amends section 1509. He argues the Legislature did
not carve out capital judgments as an exception to the type of cases which require
resentencing and he falls within the plain terms of section 1172.75, subdivision (c). He
notes the constitutionality of section 1172.75 is currently pending before the California
Supreme Court in People v. Dixon, S292223.1 Although it was not addressed by the
court below, defendant argues his pending appeal does not preclude him from relief,
1 In Dixon, the California Supreme Court has granted review on the following issues:
(1) May a superior court modify the death judgment under the recall and resentencing
procedure in section 1172.75? (2) Did the Court of Appeal err in holding that the
exclusivity provision of section 1509 precludes modification of a death judgment under
section 1172.75? (3) Did the superior court have jurisdiction to resentence defendant
pursuant to section 1172.75 when his appeal was pending before this court? (People v.
Dixon, S292223, Supreme Ct. Mins., Oct. 22, 2025.)
14.
acknowledging that his case is currently before the California Supreme Court, People v.
Michael Charles Brown, S233077, and has been pending since March 9, 2016. He
asserts section 1172.75 was designed to give trial court’s jurisdiction to resentence
regardless of whether an appeal was pending. He contends, irrespective, the issue is
forfeited because it was not raised below. Additionally, although the court did not
discuss it, defendant contends section 1172.75, subdivision (f) does not preclude him
from being resentenced because it does not apply retroactively to those cases being
litigated. We conclude the court properly dismissed defendant’s section 1172.75 petition.
Initially, contrary to defendant’s contention, the issue of whether the trial court
had jurisdiction to recall and resentence him under section 1172.75 cannot be waived.
That is, “[a] lack of jurisdiction in its fundamental or strict sense results in ‘ “ an entire
absence of power to hear or determine the case, an absence of authority over the subject
matter or the parties.’ ” (People v. Lara (2010) 48 Cal.4th 216, 224.) And
“ ‘[f]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent.
Rather, an act beyond a court’s jurisdiction in the fundamental sense is null and void’ ab
initio.” (Id. at p. 225.) “ ‘Therefore, a claim based on a lack of … fundamental
jurisdiction[] may be raised for the first time on appeal.’ ” (Ibid.)
As Millsap notes, the California Constitution provides that “[t]he Supreme Court
has appellate jurisdiction when judgment of death has been pronounced.” (Cal. Const.,
art. VI, § 11, subd. (a); Millsap, supra, 114 Cal.App.5th at p. 378.) While the Supreme
Court has stated the superior court may exercise subject matter jurisdiction over habeas
corpus proceedings when a judgment of death is pending on automatic appeal before it
(see In re Carpenter (1995) 9 Cal.4th 634, 646; see also Thompson v. Department of
Corrections (2001) 25 Cal.4th 117, 124), it has further explained that “[t]his is not to say
that the superior court may exercise its subject matter jurisdiction over habeas corpus
proceedings wherever such jurisdiction extends.” (Carpenter, at p. 646.) Rather, such
concurrent jurisdiction is limited in that the superior court “does not have ‘the power to
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interfere with the appellate jurisdiction of either [the California Supreme Court or the
Court of Appeal] in matters pending before said appellate courts .…’ ” (Id. at p. 646;
France v. Superior Court (1927) 201 Cal. 122, 131–132 [“It may be conceded that the
superior courts of the state have concurrent jurisdiction with the appellate courts in
habeas corpus proceedings, but this does not mean that they have the power to interfere
with the appellate jurisdiction of either of said last-named courts in matters pending
before said appellate courts or to overrule or set aside a judgment rendered therein”]; see
generally People v. Wilson (2024) 16 Cal.5th 874, 955 [“a trial court ordinarily does not
interfere with appellate court jurisdiction when it entertains a request for relief based on
arguments and evidence outside the appellate record”].)
Here, we conclude the superior court did not have the power to recall and
resentence defendant pursuant to section 1172.75 given that defendant’s automatic appeal
is currently pending before the California Supreme Court. This is because, “[h]ad the
trial court stricken the now-invalidated enhancement pending disposition of defendant’s
direct appeal, it would have ‘interfered’ with the court’s jurisdiction over the judgment.
Resentencing that would follow would also interfere with the court’s jurisdiction by
changing other portions of the judgment.” (Millsap, supra, 114 Cal.App.5th at p. 380.)
As Millsap noted, section 1172.75 “does not speak directly to whether trial courts may
resentence defendants in capital cases,” and we must “ ‘ “ ‘endeavor to construe the
statute in a manner which avoids any doubt concerning its validity.’ ” ’ ” (Millsap, at
p. 381.) We presume the Legislature understood the scope of the California Supreme
Court’s exclusive jurisdiction over capital cases and that the “ ‘automatic appeal’ ”
process in these cases takes “ ‘the entire judgment’ ” to the Supreme Court. (See ibid.;
see also People v. Massie (1998) 19 Cal.4th 550, 574 [“Nothing in [the] language [of
section 1239, subdivision (b)] limits the scope of a defendant’s automatic appeal to the
crime or crimes for which the defendant was sentenced to death. We therefore construe
that provision as requiring an automatic appeal to this court of the entire judgment, thus
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including convictions for noncapital as well as capital crimes.”]; see generally People v.
McKenzie (2020) 9 Cal.5th 40, 46 [“In criminal actions, the terms ‘judgment’ and
‘sentence’ are generally considered ‘synonymous’ [citation], and there is no ‘judgment of
conviction’ without a sentence.”]; People v. Hill (1986) 185 Cal.App.3d 831, 834 [“[A]n
aggregate prison term is not a series of separate independent terms, but one term made up
of interdependent components. The invalidity of one component infects the entire
scheme.”].)
And we agree with Millsap that Dixon does not compel a different result. Dixon
does not provide authority for dividing the judgment over which the Supreme Court has
exclusive jurisdiction for the purpose of providing partial resentencing pursuant to
section 1172.75. (Millsap, supra, 114 Cal.App.5th at p. 383.) “To the extent the
Legislature vested concurrent [section] 1172.75 resentencing jurisdiction pending appeal,
that jurisdiction does not extend to a capital judgment on direct appeal.” (Ibid.)
Accordingly, the trial court properly dismissed defendant’s petition for recall and
resentencing pursuant to section 1172.75. Nevertheless, our conclusion does not bar
defendant from raising his alleged entitlement to relief before the Supreme Court. (See
generally People v. DeHoyos (2018) 4 Cal.5th 594, 600 [“ ‘[A]n amendatory statute
lessening punishment is presumed to apply in all cases not yet reduced to final judgment
as of the amendatory statute’s effective date’ [citations] unless the enacting body ‘clearly
signals its intent to make the amendment prospective, by the inclusion of either an
express saving clause or its equivalent.’ ”]; accord, In re Estrada (1965) 63 Cal.2d 740,
744 [similar].)
Furthermore, because we conclude the trial court lacked jurisdiction over the
section 1172.75 petition for recall and resentencing for the reasons stated herein, we also
conclude the appeal must be dismissed. (See People v. King (2022) 77 Cal.App.5th 629,
634 [“ ‘[I]f the trial court does not have jurisdiction to rule on a motion to vacate or
modify a sentence, an order denying such a motion is nonappealable, and any appeal
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from such an order must be dismissed’ ”]; see also People v. Loper (2015) 60 Cal.4th
1155, 1165–1166 [where the trial courts lacked jurisdiction to resentence defendants on
their own motion, “their refusal to act on a defective defense motion for resentencing
could not have affected any legal rights the defendants in those cases possessed, and the
appellate courts properly dismissed the appeals”]; People v. Fuimaono (2019) 32
Cal.App.5th 132, 135 [“Because the trial court lacked jurisdiction to modify defendant’s
sentence, denial of his motion to modify his sentence could not have affected his
substantial rights. [Citation.] Accordingly, the ‘order denying [the] motion to modify
sentence is not an appealable order,’ and the appeal must be dismissed”].)
DISPOSITION
The appeal is dismissed.
GUERRA, J.
WE CONCUR:
FRANSON, Acting P. J.
SNAUFFER, J.
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