Filed 6/29/26 P. v. Ontiveros CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B347992
(Super. Ct. No. NA069732)
Plaintiff and Respondent, (Los Angeles County)
v.
GASPER BALTAZAR
ONTIVEROS,
Defendant and Appellant.
Gasper Baltazar Ontiveros appeals from the superior
court’s order denying his petition for recall and resentencing
under Penal Code1 section 1170, subdivision (d)(1) (hereafter,
1170(d)(1)). He contends the court erred in denying his petition
because his sentence of 50 years to life is the functional
equivalent of life without the possibility of parole (LWOP). We
affirm.
1 All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
A jury convicted Ontiveros in 2007 of first degree murder
(§§ 187, subd. (a), 189, subd. (a)) and found true an enhancement
that he personally and intentionally discharged a firearm causing
death (§ 12022.53, subd. (d)). Ontiveros was 17 years old when
he committed the murder. The trial court sentenced him to a
prison term of 50 years to life. We affirmed the judgment.
(People v. Gayton et al. (Oct. 27, 2008, B199709) [nonpub. opn.]
2008 WL 4696613.)
In 2023 Ontiveros filed a petition for recall and
resentencing under section 1170(d)(1), which applies to
defendants who were under 18 years old when they committed
their crimes and were sentenced to LWOP. (See People v. Heard
(2022) 83 Cal.App.5th 608.) The district attorney opposed the
petition on the grounds that Ontiveros was not sentenced to
LWOP or its “functional equivalent,” and resentencing was not
available in light of the provisions of section 3051 regarding
youth offender parole hearings. The trial court ruled he was not
eligible for resentencing, exercised its discretion to not
resentence, and denied the petition.
DISCUSSION
There is currently a split of authority whether a sentence of
50 years to life is the “functional equivalent” of LWOP that would
make a defendant eligible for resentencing under section
1170(d)(1). People v. Cabrera (2025) 111 Cal.App.5th 650 holds
that it is. The Attorney General here concedes that Ontiveros is
entitled to remand for a resentencing hearing.
We are not bound by the Attorney General’s concession and
decline to accept it. (People v. Thompson (2025) 112 Cal.App.5th
1058, 1063, review granted Sep. 24, 2025, S292540 (Thompson);
2
People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.) We agree
with cases including Thompson and People v. Munoz (2025) 110
Cal.App.5th 499, 502, review granted June 25, 2025, S290828
that 50 years to life is not the “functional equivalent” of LWOP
for purposes of section 1170(d)(1).
As we concluded in People v. Lara (2025) 115 Cal.App.5th
484, 487–488, review granted Dec. 30, 2025, S294095, the equal
protection concerns that would authorize relief pursuant to
section 1170(d)(1) to those not actually sentenced to LWOP have
been mooted by the enactment of section 3051. It provides youth
parole hearings to persons sentenced to 25 years to life for crimes
committed before age 25, or sentenced to LWOP for crimes
committed before age 18. (§ 3051, subd. (b)(3) & (4).) Thus, the
availability of youth offender parole makes it unnecessary to
expand section 1170(d)(1) beyond its plain meaning in order to
comport with the Constitution. (See People v. Ortega (2025) 111
Cal.App.5th 1252, 1262–1265, review granted Sept. 17, 2025,
S292070.)
We respectfully disagree with and decline to follow the
opinions that would support a section 1170(d)(1) petition in this
case. (E.g., People v. Bagsby (2024) 106 Cal.App.5th 1040, 1061–
1063 [107 years to life]; People v. Sorto (2024) 104 Cal.App.5th
435 [140 years to life].) Only our Supreme Court can resolve this
split of authority.
Ontiveros also contends that denying him a resentencing
hearing, but affording one to offenders originally sentenced to
LWOP under section 1170(d)(1) violates equal protection because
both classes of offenders are parole-eligible but treated
disparately. But as our colleagues in Division Three in
Thompson recently explained, there are rational reasons why the
3
Legislature could have restricted resentencing hearings under
section 1170, subdivision (d) to offenders originally sentenced to
LWOP. (Thompson, supra, 112 Cal.App.5th at p. 1079.) Those
reasons could include that juvenile offenders sentenced to 50
years to life accrue conduct credits while LWOP offenders do not,
and to provide LWOP offenders with an opportunity to
participate in counseling, education, and rehabilitation programs.
(Id. at p. 1080.)
Because “we presume that a given statutory classification
is valid ‘until the challenger shows that no rational basis for the
unequal treatment is reasonably conceivable,’ ” we conclude
resentencing is not warranted here. (People v. Hardin (2024) 15
Cal.5th 834, 852.) As our Supreme Court recently stated: “ ‘If a
plausible basis exists for the disparity, courts may not second-
guess its “ ‘wisdom, fairness, or logic.’ ” ’ [Citation.] ‘[T]he logic
behind a potential justification need [not] be persuasive or
sensible—rather than simply rational.’ ” (Ibid.)
DISPOSITION
The judgment (order denying resentencing) is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
YEGAN, Acting P. J. CODY, J.
4
BALTODANO, J., Concurring:
Because he was 17 years old when he committed murder,
Ontiveros will receive a youth offender parole hearing during his
25th year of incarceration. (Pen. Code,1 § 3051, subd. (b)(3).)
Ontiveros thus does not come within the plain language of section
1170, subdivision (d)(1)(A) because he was not sentenced to life
without the possibility of parole (LWOP). (People v. Heard (2022)
83 Cal.App.5th 608, 633–634 (Heard).) Nor in my view is
Ontiveros’s sentence the functional equivalent of LWOP.
I write separately because denying Ontiveros a
resentencing hearing may violate his right to the equal protection
of the laws guaranteed by our federal and state Constitutions.
(U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).)
Like Ontiveros, offenders under the age of 18 but convicted
of special circumstance murders and originally sentenced to
LWOP are now entitled to youth offender parole hearings during
their 25th year of incarceration. (§ 3051, subd. (b)(4).) Thus,
both classes of defendants are arguably similarly situated
because both are parole eligible. (§ 3051, subd. (b)(3) & (4).)
“ ‘Where a class of criminal defendants is similarly situated to
another class of defendants who are sentenced differently, courts
look to determine whether there is a rational basis for the
difference.’ ” (Heard, supra, 83 Cal.App.5th at p. 631.)
Our Supreme Court in People v. Hardin (2024) 15 Cal.5th
834, 838–839 (Hardin) upheld the constitutionality of youth
offender parole for offenders between the ages of 18 and 25
convicted of murder and sentenced to life with the possibility of
parole, but not for offenders of that age convicted of special
1 All statutory references are to the Penal Code.
circumstance murder and sentenced to LWOP. In treating these
youthful offenders disparately, Hardin concluded there was a
rational basis because “the Legislature balanced multiple
considerations, including both concerns about increasing
opportunities for release for young adults able to show growth
and maturity and concerns about calibrating the level of
punishment appropriate for certain serious criminal offenses.”
(Id. at p. 857.)
But despite being similarly situated, Ontiveros and parole-
eligible LWOP defendants are treated unequally in significant
ways. A youth offender parole hearing does not occur until the
25th year of incarceration. But resentencing under section 1170,
subdivision (d)(1)(A) is available earlier, after 15 years of
incarceration.
The criteria for resentencing and youth parole are different.
Section 1170 provides that resentencing is required if the court
finds “[t]he defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law,” “[t]he defendant
does not have juvenile felony adjudications for assault or other
felony crimes with a significant potential for personal harm to
victims prior to the offense for which the sentence is being
considered for recall,” “[t]he defendant committed the offense
with at least one adult codefendant,” or “[t]he defendant has
performed acts that tend to indicate rehabilitation or the
potential for rehabilitation . . . .” (§ 1170, subd. (d)(2)(A)–(D) &
(d)(5).)
In contrast, youth offender parole focuses on “(1) the
diminished culpability of youth as compared to adults; (2) the
hallmark features of youth; and (3) any subsequent growth and
increased maturity of the inmate.” (Cal. Code Regs., tit. 15,
2
§ 2445, subd. (b), see id., § 2446.) Parole may be denied if “the
youth offender remains a current, unreasonable risk to public
safety.” (Cal. Code Regs., tit. 15, § 2445, subd. (d).) Thus, the
possibility the parole board might grant release may not moot the
alternative relief available through resentencing.
Resentencing also provides “meaningful relief” beyond a
parole hearing because it permits the court to modify the
sentence such as striking a firearm enhancement (see § 12022.53,
subd. (h)) and entitles the defendant to “the benefits of
retroactive ameliorative changes to the law.” (People v. Sorto
(2024) 104 Cal.App.5th 435, 449.) A parole hearing does not.
Nor does youth offender parole necessarily provide the
same opportunity for release as resentencing. A grant of parole is
subject to the discretion of the Board of Parole Hearings. (In re
Poole (2018) 24 Cal.App.5th 965, 971; see People v. Franklin
(2016) 63 Cal.4th 261, 269.) In 2022, parole was granted in only
37 percent of lifer youth offender parole hearings. (Board of
Parole Hearings, Just the Facts—Grant Rates, p. 2
<https://www.cdcr.ca.gov/bph/wp-
content/uploads/sites/161/2023/10/Just-the-Facts-Grant-
Rates.pdf> [as of June 22, 2026], archived at
<https://perma.cc/JY6D-PVPC>.)
It was not until 2012 that LWOP offenders under the age of
18 would be given an opportunity for resentencing through what
is now codified as section 1170, subdivision (d)(1)(A). (Sen. Bill
No. 9 (2011–2012 Reg. Sess.).) Its legislative history is discussed
in People v. Thompson (2025) 112 Cal.App.5th 1058, 1075–1077,
review granted Sep. 24, 2025, S292540. In enacting section 1170,
subdivision (d), the Legislature was “expressly concerned about
juveniles being sentenced to die in prison.” (Id. at p. 1075, italics
3
omitted.) Thompson cited legislative reports that “sentencing
minors to die in prison is barbaric, counter to principles of
cognitive and emotional development in minors, and all but
unprecedented in [the] rest of the world.” (Ibid.) The author of
the bill also cited racial disparities in imposing LWOP for
juveniles. (Id. at p. 1076.) “This history suggests the
Legislature’s concern was not merely excessive punishment of
juveniles that failed to take into consideration their capacity for
change, or even lengthy sentences. Instead, a specific goal was to
provide an opportunity for juvenile offenders whose sentences
ensured they would die in prison.” (Ibid.)
When section 1170, subdivision (d)(2) was enacted, youthful
LWOP offenders were not entitled to parole hearings pursuant to
section 3051, subdivision (b)(4). (See § 1170, subd. (d)(2), added
by Stats. 2012, ch. 828, § 1, eff. Jan. 1, 2013; § 3051, subd. (b)(4),
added by Stats. 2017, ch. 684, § 1.5, eff. Jan. 1, 2018.) At that
time, it was thus rational for the Legislature to create a
resentencing remedy for those youthful LWOP offenders. But
now that youthful LWOP offenders are parole-eligible pursuant
to section 3051, providing them but not youthful offenders, like
Ontiveros, with resentencing hearings may result in disparate
treatment devoid of a rational basis. As our Supreme Court
declared over 50 years ago: “The governing constitutional test,
again, is whether a statute’s classification bears a rational
relation to a legitimate state interest; a classification which once
was rational because of a given set of circumstances may lose its
rationality if the relevant factual premise is totally altered.”
(Brown v. Merlo (1973) 8 Cal.3d 855, 869.)
Defendants sentenced to LWOP have committed special
circumstance murders that are “ ‘more severe and more deserving
4
of lifetime punishment than nonspecial circumstance first degree
murder.’ ” (Heard, supra, 83 Cal.App.5th at p. 633.) “Under
California law, special circumstance murder is a uniquely serious
offense, punishable only by death or life without possibility of
parole.” (Hardin, supra, 15 Cal.5th at p. 839.) Yet, these
youthful offenders convicted of special circumstance murders are
treated more leniently than offenders who received less severe
punishment. I question whether the disparate treatment here
can still be justified under rational basis review.
NOT TO BE PUBLISHED.
BALTODANO, J.
5
Richard M. Goul, Judge
Superior Court County of Los Angeles
______________________________
Bess Stiffelman, 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, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.