Friday, June 12, 2026
Page 3
C.A. Adheres to Precedent, Reaches Result Majority Decries
Retired Presiding Justice Gilbert, Sitting on Assignment, Declares Reversal Is Required Under Recent Decision of State Supreme Court, but Says Principles of Justice Are Defied by Robotically Applying Statute Retroactively
By a MetNews Staff Writer
The Court of Appeal for this district yesterday invalidated a sentence, in obedience to a recent California Supreme Court decision, with the majority indicating a belief that the wrong result was being reached.
Retired Court of Appeal Presiding Justice Arthur Gilbert authored the opinion, sitting on assignment to Div. Six. Presiding Justice Elwood Lui joined in Gilbert’s opinion; Justice Anne Richardson agreed with the outcome, but said she does not share Gilbert’s concerns.
The appellant is Edward Bustillos who, in 2020, pled no contest to one count of felony elder or dependent adult abuse. Under a plea bargain, he was sentenced to the upper term of four years in prison, with imposition of that sentence suspended, with five years of probation.
A few months later, he failed to make a court appearance; probation was revoked; a bench was war issued; Bustillos reappeared in 2024; Los Angeles Superior Court Judge Maria A. Davalos denied the defendant’s request that probation be reinstated and he four-year term was ordered to be executed.
The upper term was validly imposed in 2020 when judges had broad discretion in choosing the low, middle, or upper term, Gilbert said, but noted that under legislation effective Jan. 1, 2022, that is no longer so. The high term may be chosen under Penal Code §1170(b)(2), he recited, only “when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances 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.”
Under Mitchell, he said, unless the defendant waives his rights under that decision, or the parties will stipulate to imposition of the middle term, there will be a return to the pre-plea status.
Unhappy With Outcome
Gilbert commented:
“We are concerned that the result here violates a maxim of jurisprudence that underlies our system of laws and is accepted as a moral imperative in most societies throughout the world: ‘No one can take advantage of their own wrong.’ ”
That maxim, he noted, is codified at Civil Code §3517.
The jurist continued:
“Bustillos avoided capture until after the change in the law. Now he wants to gain the benefit of a more lenient sentence. These circumstances are markedly different from those in Mitchell, where the law changed while the defendant was serving her prison sentence (not having absconded) and had a pending appeal.”
New York Decision
He drew attention to the 1889 decision of the New York Court of Appeals, that state’s highest court, in Riggs v. Palmer. Gilbert noted:
“[T]he appellate court decided whether a grandson who murdered his grandfather by poisoning could inherit under his grandfather’s will….A literal construction of New York law would allow it; the court, however, concluded that equity could not.”
The 1889 opinion was quoted as saying:
“ [A]ll laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.”
‘Inflexible Application’
Gilbert acknowledged that the California Supreme Court said in its 1965 decision in In re Estrada that an ameliorative statute applies “to every case to which it constitutionally could apply,” but remarked that “an inflexible application of the Estrada presumption under the circumstances here comes at the price of violating overriding principles of justice.”
He suggested:
“The Legislature may wish to correct this problem.”
Richardson’s View
Richardson disagreed with Gilbert’s comments, saying:
“The majority expresses concern that Bustillos is able to benefit from Senate Bill 567 because his own misconduct led to his criminal proceeding not being final when Senate Bill 567 took effect. But the Estrada presumption applies ameliorative legislation to all nonfinal cases, regardless of why they are not final.
“Our Legislature remains free, of course, to specify a different rule of retroactivity for legislation it passes. After all, the Estrada presumption applies only when the Legislature has not specified a contrary intent.”
The case is People v. Bustillos, B337951.
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