Thursday, October 1, 2026
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C.A. Says Kern D.A. Lacks Authority to Appeal Alameda Superior Court Resentencing Order
Panel Dismisses Bid to Undo Reduction of Terms for 1976 Murders, Says No Power to Act for ‘People’ When Local Prosecutor, Attorney General Chose Not to Challenge Ruling
By a MetNews Staff Writer
Div. One of the First District Court of Appeal held yesterday that Kern County District Attorney Cynthia Zimmer lacks authority to appeal a resentencing order entered in Alameda Superior Court that resulted in the early release of a convicted killer where the local prosecutor in that jurisdiction and the Attorney General each declined to challenge the decision.
Justice Kathleen M. Banke, writing for the court, acknowledged that the resentencing order not only reduced the defendant’s sentence as to two murder counts tried in Alameda but also as to a subsequent case filed by Kern prosecutors based on the possession of marijuana in a prison facility located in that county. However, she declared:
“[T]he salient question here is not whether the resentencing order was fundamentally appealable, but which of three public prosecutors had the authority in this particular case to decide on behalf of the People whether to exercise their right to appeal the order.”
Highlighting that “no party cites any directly pertinent authority” on the issue, she looked to Article V, §13 of the California Constitution, which refers to the Attorney General as the “chief law officer of the State” charged with the “direct supervision” of “every district attorney,” and opined:
“[O]ur state Constitution counsels us to defer…to the Attorney General’s view of the matter….[T]he Attorney General has expressly not authorized the Kern DA ‘to act on behalf of the People…in this matter,’ and further has expressly ‘decline[d] to authorize’ this appeal. No law precludes this exercise of the Attorney General’s constitutionally endowed executive authority.”
First-Degree Murders
The killer in question, Joseph Toussaint III, was convicted of two first-degree murders relating to the 1976 deaths of an elderly couple during a botched burglary by the defendant, who was 17 years old at the time. An Alameda Superior Court judge sentenced him to two concurrent terms of life in prison.
He was housed at a facility in Kern County where, approximately twenty years later, he was found in possession of marijuana. A judge in that jurisdiction imposed a sentence of 25 years to life in prison based on the then-newly enacted Three Strikes Law.
In July 2024, Toussaint, who was then 65 years old, submitted paperwork to the Alameda Superior Court asking for a resentencing hearing under Penal Code §1172.1, which provides in relevant part:
“[T]he court may, on its own motion,…at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law,… recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced…. Recall and resentencing under this section may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case.”
Resentencing Proceedings
In September 2024, Alameda Superior Court Judge Thomas Stevens accepted the invitation. Citing the defendant’s age, purported rehabilitation, and lack of current dangerousness, he resentenced the inmate to 22 years on two counts of voluntary manslaughter, rather than the first-degree murders of which a jury had convicted him.
Stevens further dismissed the strike allegations in the marijuana case in the interest of justice and imposed a new four-year sentence on the drug charge, to run concurrently with the other term. The inmate was released in October 2024, having served more than 48 years in prison.
Lawyers with the Kern County District Attorney’s Office filed a notice of special appearance in the Alameda Court and moved to vacate the resentencing order on the ground that Stevens had no jurisdiction to recall a sentence imposed in Kern County. No action was taken on the motion to vacate.
Then-Alameda County District Attorney Pamela Price, who was later ousted from office in 2024 by way of a recall effort that characterized her as soft on crime, did not file a notice of appeal, and Attorney General Rob Bonta similarly declined to challenge the order. Zimmer filed an appeal two days after Toussaint was released.
Authority to Appeal
In January, Div. One issued an order inviting the Attorney General to address whether Zimmer had “authority and/or standing to file a notice of appeal” from the Alameda Superior Court order. Bonta filed a brief advising the court that he “has not authorized the Kern County [D.A.] to act on behalf of the People or the Attorney General in this matter” and “declines to…take over this appeal.”
The brief further suggested that the court could exercise its discretion to treat the appeal as a petition for a writ of mandate by Zimmer, “[who] has a substantial beneficial interest in preserving the integrity of the separate conviction out of Kern County.”
Banke remarked that “the People unquestionably had the right to appeal the Alameda Court resentencing order” but said that “it is unclear who had the authority to decide whether the People should exercise that right.” She continued:
“A fundamental principle of appellate review is that the appellant ‘bears the burden of establishing appealability’ and appellate jurisdiction….Thus, the absence of authority supporting the appellant Kern DA’s view weighs somewhat more heavily against her than does the lack of authority supporting the contrary view of the Attorney General and Toussaint.”
Pointing to Article V, §13 as additional support for the defendant’s position, she declared:
“We therefore conclude that, in this case, the People’s decision to appeal rested with the Alameda DA and the Attorney General.”
She rejected the invitation to treat the unauthorized appeal as a writ proceeding and commented that “the Attorney General is not clear as to who the postulated petitioner would be—the People represented by the Kern DA, or the Kern DA in her own right as a county official.” The jurist opined:
“If the supposed petitioner is the People represented by the Kern DA, the question is whether the People can satisfy the foremost requirement for writ relief—that they have no ‘plain, speedy, and adequate remedy in the ordinary course of law’ to redress error by the Alameda Court.”
Finding the burden to be insurmountable, she reasoned:
“There is no dispute the People had a presumptively adequate remedy, namely an immediate appeal from the resentencing order….The Alameda DA and Attorney General each knew of the order well within the time to file a notice of appeal on the People’s behalf. Both chose, however, not to exercise the People’s right of appeal.”
County Official
As to her authority to act as a county official, Banke said:
“It would…be wholly unprecedented, so far as the parties have shown or we can find, to rule that a county DA has the requisite beneficial interest in a criminal case to seek writ relief as a representative, not of the People, but of their county office.”
She noted that “the Kern DA maintains the Alameda Court had no authority to resentence the Kern County conviction,” an assertion disputed by Toussaint, but she opined:
“Whatever the validity of these assorted claims, the point for purposes of whether the Kern DA has the requisite beneficial interest to raise them by writ is that none turns on the fact the sentence the Alameda Court recalled was imposed in, or for a crime committed in, Kern County. There is thus no reason to infer that the Kern DA’s defined responsibility for prosecuting crimes committed in Kern County gives her any special interest in the resentencing order beyond the interest and right held by the People, represented by the Attorney General and Alameda DA.”
Banke added:
“We realize our conclusion might arguably result in a sentencing error by the Alameda Court going unaddressed. However, this is hardly clear. While the Kern DA disputes that the Alameda Court had authority to resentence the Kern County conviction, Toussaint maintains the court had the authority to do so, and the Attorney General seems to acknowledge the Alameda Court at least had the authority to consider the issue.”
The case is People v. Toussaint, 2026 S.O.S. 3111.
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