Filed 8/11/26 P. v. Salvador CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B347588
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA342646
v.
HERBERT SALVADOR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, George Gonzalez Lomeli, Judge. Affirmed.
California Appellate Project, Jennifer Peabody and Sydney
Banach, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Steven E. Mercer,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Herbert Salvador committed murder when he
was 17 years old. He is serving a 50-years-to-life sentence.
Salvador appeals the trial court’s order denying him Penal Code
section 1170, subdivision (d) relief.1 That statute authorizes
juvenile offenders sentenced to life without the possibility of
parole (LWOP) to petition for recall and resentencing. Although
Salvador is not serving an LWOP sentence, he nonetheless
contends he is entitled to relief under the statute because (1) his
sentence is the functional equivalent of LWOP; and (2) the trial
court’s order denying him relief violated his right to equal
protection under the law. We affirm.
BACKGROUND
In 2010, a jury convicted Salvador of first degree murder.
(§ 187, subd. (a).) The jury also found various firearm allegations
true, including that Salvador personally and intentionally
discharged a firearm, causing great bodily injury and death to the
victim. (§ 12022.53, subds. (b)–(d).) The court sentenced
Salvador to 50 years to life in state prison, consisting of
consecutive terms of 25 years to life on the murder and the
section 12022.53, subdivision (d) firearm allegation.
In 2023, Salvador filed a petition for recall and
resentencing under section 1170, subdivision (d) and People v.
Heard (2022) 83 Cal.App.5th 608 (Heard). In August 2023, the
trial court summarily denied the petition, concluding Salvador
was “not eligible and [not] suitable for the relief requested.”
Salvador appealed.
1 Undesignated statutory references are to the Penal Code.
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DISCUSSION
A. Standard of Review
We review Salvador’s claims de novo because they raise
pure questions of law. (People v. Rells (2000) 22 Cal.4th 860,
870.) Although the Attorney General agrees with Salvador that
the trial court erred by denying his petition, we independently
assess the merits of Salvador’s arguments. (See People v. Kim
(2011) 193 Cal.App.4th 836, 847 [“We are not required to accept
the Attorney General’s concession”].)
B. Salvador Is Not Entitled to Section 1170 Relief
Because He Is Not Serving the Functional Equivalent
of LWOP
Section 1170, subdivision (d)(1)(A) allows “a defendant who
was under 18 years of age at the time of the commission of the
offense for which the defendant was sentenced to” LWOP and
who “has been incarcerated for at least 15 years” to petition the
sentencing court for recall and resentencing. The statute’s plain
language extends relief only to juvenile offenders with LWOP
sentences. (People v. Olmos (2025) 109 Cal.App.5th 580, 583.)
Salvador contends that his 50-years-to-life sentence is the
functional equivalent to an LWOP term and thus falls within the
ambit of section 1170, subdivision (d). Our Supreme Court has
not decided whether a 50-years-to-life sentence imposed on a
juvenile offender is the functional equivalent of LWOP for
purposes of section 1170 relief. But the high court has addressed
the issue in the context of an Eighth Amendment analysis.
In People v. Franklin (2016) 63 Cal.4th 261 (Franklin), a
juvenile defendant convicted of murder was sentenced to life in
prison with the possibility of parole in 50 years. (Id. at p. 268.)
On appeal, he argued that his sentence violated the Eighth
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Amendment’s prohibition against cruel and unusual punishment.
(Id. at p. 272.) The court held the defendant’s Eighth
Amendment challenge was moot because the Legislature enacted
section 3051, requiring that he receive a parole hearing during
his 25th year of incarceration. (Id. at p. 268.)
In People v. Contreras (2018) 4 Cal.5th 349 (Contreras),
unlike Franklin, the juvenile nonhomicide offenders were not
eligible for parole under section 3051. (Id. at p. 359.) The court
held the 50-year-to-life sentence imposed on one of the offenders
was the functional equivalent of an LWOP term and thus
violated the Eighth Amendment. (Id. at pp. 356, 369.)
After Contreras, some Courts of Appeal have held that
although section 1170, subdivision (d)(1) expressly applies only to
juvenile offenders with LWOP sentences, it must also apply to
juvenile offenders with de facto LWOP sentences in order to not
violate equal protection principles. (Heard, supra, 83
Cal.App.5th at pp. 633–634 [denying juvenile offenders sentenced
to the functional equivalent of LWOP the opportunity to obtain
section 1170, subdivision (d)(1) relief would violate the guarantee
of equal protection under the law]; People v. Sorto (2024) 104
Cal.App.5th 435 (Sorto) [following Heard and reaching same
conclusion]; People v. Bagsby (2024) 106 Cal.App.5th 1040, 1056
(Bagsby) [same].)
Other courts have more recently disagreed with or
distinguished Heard and its progeny in various ways. One such
approach can be found in People v. Munoz (2025) 110 Cal.App.5th
499, review granted June 25, 2025, S290828 (Munoz). There, the
majority affirmed the denial of section 1170, subdivision (d)
relief, concluding a sentence of 50-years-to-life was not the
functional equivalent of LWOP for purposes of eligibility under
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section 1170, subdivision (d).2 In reaching this holding, the
majority explained that Munoz “will have a realistic opportunity
to obtain release from prison during his expected lifetime” after
serving 50 years in prison (i.e., at the age of 65). (Munoz, at p.
508; but see dis. opn. of Feuer, J. at pp. 512–513 [reaching the
opposite conclusion].) The majority distinguished Heard, noting
the defendant in that case was sentenced to 23 years plus 80
years to life in state prison. (Munoz, at p. 507.)
People v. Thompson (2025) 112 Cal.App.5th 1058
(Thompson), review granted September 24, 2025, S292540, took a
different approach, concluding section 1170, subdivision (d) does
not violate equal protection because the Legislature had a
rational basis for limiting relief to individuals serving actual
LWOP sentences. (Thompson, at p. 1062.) The Thompson court
noted the Legislature, in enacting the statute, “was expressly
concerned about juveniles being sentenced to die in prison.” (Id.
at p. 1075.) In reaching this holding, the Thompson court
conducted a lengthy legislative history analysis and emphasized
that the Legislature is accorded broad deference under rational
basis review. (Id. at pp. 1075–1078.)
People v. Isayev (2025) 113 Cal.App.5th 1117 (Isayev),
review granted November 12, 2025, S292860, took yet another
approach. Citing Franklin, the court concluded section 3051
“ ‘effectively reforms’ the defendant’s sentence ‘so that the longest
2 In Munoz, the Supreme Court is set to address the same
issue presented here—whether a juvenile homicide offender
sentenced to 50-years-to-life in prison is entitled to recall and
resentencing under section 1170, subdivision (d) on the ground
that the sentence is the functional equivalent of LWOP.
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possible term of incarceration before parole eligibility is 25
years.’ ” (Isayev, at p. 1141.) The court disagreed with Heard,
Sorto, and Bagsby, “each of which concluded that the availability
of a youth offender parole hearing under section 3051 does not
render a juvenile offender ineligible for relief under section 1170,
subdivision (d).” (Isayev, at p. 1142.) The Isayev court held that
the defendant’s 50-years-to-life sentence was not the functional
equivalent of LWOP because he would become eligible for a youth
offender parole hearing during his 25th year of incarceration.
(Isayev, at p. 1141, citing § 3051.)
We agree with the analysis in Isayev. Salvador is not
serving the functional equivalent to LWOP because he will be
eligible for parole 25 years after his sentence was imposed.
(§ 3051, subd. (b)(3).) Accordingly, Salvador is not eligible for
section 1170 relief because that statute only applies to offenders
sentenced to an LWOP term. We respectfully disagree with
Heard, Sorto, and Bagsby to the extent they are inconsistent with
our conclusion. (See Heard, supra, 83 Cal.App.5th at p. 629;
Sorto, supra, 104 Cal.App.5th at pp. 447–448; Bagsby, supra, 106
Cal.App.5th at p. 1063.)
Salvador’s reliance on Contreras is misplaced. In
Contreras, the issue was whether sentences of 50 years to life and
58 years to life imposed on nonhomicide juvenile offenders
violated the Eighth Amendment. (Contreras, supra, 4 Cal.5th at
p. 356.) Here, Salvador was convicted of murder, and he does not
make an Eighth Amendment argument. Moreover, in Contreras,
the defendants were ineligible for youthful parole hearings under
section 3051 because they were sentenced pursuant to the One
Strike law. (Contreras, at pp. 357, 359.) By contrast, as Salvador
acknowledges, he will be eligible for a youthful parole hearing
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during his 25th year of incarceration. Contreras lends no support
to Salvador’s position.
DISPOSITION
We affirm the order denying Salvador section 1170,
subdivision (d) relief.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
MORI, Acting P. J.
COGLIATI, J.*
* Judge of the Santa Cruz Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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