Monday, May 11, 2026
Page 3
Court of Appeal:
LWOP Sentence Does Not Foreclose Resentencing Relief
Opinion Says Judge Erred in Reading Statutory Scheme Governing Procedures for Convicts Subject to Defunct Enhancements for Prior Incarcerations as Disqualifying all Inmates Serving Life Sentences
By a MetNews Staff Writer
The Fifth District Court of Appeal held Friday that a murderer facing life in prison without the possibility of parole is entitled to a full resentencing hearing—at which a judge must consider “any changes in law that reduce [penalties] or provide for judicial discretion”—based on the fact that his sentence includes three one-year enhancements under a now-defunct scheme authorizing additional custody time for previous terms of incarceration.
At issue is an amendment, adopted last year following the passage of Senate Bill 285, to add a new subdivision (f) to Penal Code §1172.75, which declares enhancements for previous incarcerations, other than those relating to certain sexual offenses, to be “legally invalid” and outlines a procedure for affected inmates to seek resentencing. The new subsection provides:
“[A]n individual who has been convicted of a sexually violent offense…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.”
Subdivision (c) specifies that “the court shall review the judgment” of any case identified by the secretary of the Department of Corrections and Rehabilitation as including a now-defunct enhancement imposed for a prior conviction and, if the officer’s conclusion is confirmed, the judge “shall recall the sentence and resentence the defendant.” The scheme requires the procedure to “result in a lesser sentence” unless public safety would be endangered.
Conjunctive Reading
Acting Presiding Justice Jennifer R.S. Detjen authored Friday’s opinion declaring that Kern Superior Court Judge Andrew Kendall erred in denying a petitioner’s bid for resentencing based on §1172.75(f) where the inmate had not been convicted of a sexually violent offense. She wrote:
“Defendant argues this provision should be construed conjunctively to exclude from resentencing only those individuals who have suffered a conviction for a qualifying sexually violent offense and been sentenced to death or a life term without the possibility of parole. The People contend the statute should be construed disjunctively to exclude from resentencing individuals who have been convicted of a qualifying sexually violent offense or sentenced to death or a term of life without the possibility of parole. Defendant has the better argument.”
Detjen downplayed the likelihood that the court’s decision will ultimately lead to the overthrow of the determinate life sentence, commenting:
“[T]he result of resentencing proceedings in this case will be largely illusory. Defendant stands convicted of first-degree murder with a mandated sentence of either death or a term of life without the possibility of parole.…Although defendant argued in the trial court that the court should stay his sentence on the murder count…and instead execute sentence on [other charges], that result is far from likely. Whatever benefit defendant may receive from resentencing on his determinate terms will likely have no practical effect on his operative sentence.”
However, the jurist pointed out in a footnote that “we take no position on the result of further resentencing proceedings in this case.”
First-Degree Murder
The question arose after Henry Robinson was convicted of first-degree murder and other charges relating to a 1994 robbery of a Kern County liquor store that left one worker dead and another wounded. He was sentenced to life without the possibility of parole, plus three years for prior prison terms as well as additional time for other counts and enhancements.
Following the adoption of §1172.75, corrections department officials informed the sentencing court in late 2023 that Robinson was serving a term that included a now-defunct enhancement. After a hearing was scheduled for January 10, 2025, attorneys with the Kern County District Attorney’s Office filed a motion seeking to dismiss the defendant’s request for resentencing based on §1172.75(f).
Kendall agreed with the prosecutors that the defendant’s life-without-the-possibility-of-parole sentence precluded relief under the newly enacted section and granted the motion to dismiss on Feb. 7, 2025.
Friday’s decision, joined in by Justices Rosendo Peña and Justice Arlan Harrell, declares:
“The order granting the People’s motion to dismiss resentencing is reversed and the matter is remanded for further resentencing proceedings consistent with this opinion.”
Not Always Conjunctive
Acknowledging that “and” is not always used to reflect a conjunctive meaning, Detjen remarked:
“[A] court may substitute ‘or’ for ‘and’ to ‘correct a [mistake in drafting]….’….Additionally, a court may substitute ‘or’ for ‘and’ to avoid a construction of the statute that would make some words surplusage.”
However, she opined:
“[T]he text of the statute does not suggest a legislative intent to favor a disjunctive construction of subdivision (f) of section 1172.75….Nothing else in the statute suggests this phrase should be read disjunctively. Accordingly, the People have not shown that, on its face, subdivision (f) is reasonably susceptible to a disjunctive interpretation that would exclude from resentencing individuals, such as defendant, who are serving a term of life without the possibility of parole, but who have not been convicted of a sexually violent offense.”
Saying that, “[e]ven if we assume the plain language of section 1172.75, subdivision (f) is ambiguous…, the legislative history does not support the People’s argument,” she pointed out that the supporting commentary to the proposal uses the word “and” to describe those inmates barred from resentencing.
She commented that “we note that courts have already determined, albeit in dicta…, that [§1172.75(f)] is to be read conjunctively,” citing last year’s decision by this district’s Div. Seven in People v. Dixon, which held that a death-row inmate was entitled to relief but was foreclosed from seeking to upend the death penalty portion of his sentence because the exclusive procedure for a collateral attack on such a judgment is a petition for a writ of habeas corpus.
The justice declared:
“[W]e hold that subdivision (f) of section 1172.75 must be construed conjunctively to exclude from resentencing only those individuals who have been convicted of a qualifying sexually violent offense and sentenced to death or a life term without the possibility of parole. Because defendant was not convicted of a qualifying sexually violent offense, he remains eligible for resentencing, and the court erred in holding otherwise.”
The case is People v. Robinson, F089332.
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