subd. (c)) were consecutive to his already-served term that included the prison priors.
Defendant characterizes precedent holding a defendant ineligible for section 1172.75
resentencing in such circumstances (People v. Escobedo (2023) 95 Cal.App.5th 440
(Escobedo)) as mere dicta and, on the merits, inconsistent with the Legislature’s intent in
enacting the statute. In the alternative, he asserts an equal protection violation. We find
no error and therefore affirm the trial court’s order.
BACKGROUND
In February 2005, the trial court sentenced defendant to a total term of 10 years in
prison, comprised of three years for assault with a deadly weapon (§ 245, subd. (a)(1))
and seven years for various enhancements. The enhancements included consecutive
terms of three years for inflicting great bodily injury on the victim (§ 12022.7, subd. (a)),
a year for personal use of a weapon (§ 12022, subd. (b)(1)), and, of relevance here: a
year each for defendant’s three prior prison commitments (§ 667.5, subd. (b)).
1 All further undesignated statutory references are to the Penal Code unless otherwise indicated.
2
In December 2023, the trial court considered whether defendant was eligible for
recall of his sentence under section 1172.75, based on the inclusion of his name on a list
of potentially eligible inmates compiled by the California Department of Corrections and
Rehabilitation (CDCR). (See § 1172.75, subd. (b).) Given that almost 20 years had
elapsed since defendant’s 10-year sentence was imposed, the trial court considered it
unlikely defendant was currently incarcerated under the original judgment that included
his prior prison commitments, “unless there was some aggregate term that was later
imposed.” The court acknowledged “a number of interesting things . . . could have
happened.” For instance, “he may be back [in prison] on this case [i.e., his original 10-
year term] on a parole violation.” The court adjourned for the parties to look into the
matter, including by obtaining defendant’s “rap sheet.”
When the court and counsel reconvened, the prosecutor continued to oppose recall
and resentencing on grounds that defendant was ineligible based on, as reflected in his
rap sheet, “a number of in-custody offenses that would explain why [he] is still
incarcerated.” The court asked defense counsel to address Escobedo, in particular the
appellate court’s conclusion there that defendants are ineligible for resentencing under
section 1172.75 when they are currently serving a term that is not for a judgment that
includes an enhancement for a prior prison commitment, but rather a subsequent,
consecutive prison term for an in-custody offense. Those subsequent terms commence at
the conclusion of the sentence a defendant was serving when they committed a new
offense in prison. (Escobedo, supra, 95 Cal.App.5th at p. 452, citing § 1170.1, subd. (c).)
In response, defense counsel dismissed Escobedo as dicta, argued in any event that the
3
Legislature’s general purpose in enacting section 1172.75 “to reduce the sentence” still
applied to defendant, and asserted that any contrary conclusion “violates equal protection
and due process.”
The trial court found, based on defendant’s rap sheet, that there was no “dispute
about how he’s still in custody,” namely, that he was currently incarcerated for his in-
prison offenses rather than under his original judgment that included enhanced terms for
prison priors, which he had fully served. The court found Escobedo “is good law” and
rejected defendant’s equal protection argument, concluding that deterring the commission
of “subsequent offenses” in prison was a “rational basis” for the Legislature to withhold
extending resentencing relief under section 1172.75 to those defendants. Finding
defendant ineligible for resentencing, the court concluded, “So I’m going to rule
consistently with Escobedo that he’s not entitled to relief.”
DISCUSSION
On appeal, defendant reasserts his same contentions as below, minus the due
process claim. Specifically, he contends Escobedo does not forestall relief because its
analysis was dicta; furthermore, he claims Escobedo’s analysis is unpersuasive because
section 1172.75 evinces an overarching intent to reduce prison sentences; and, finally, if
Escobedo applies, defendant argues that withholding resentencing relief for inmates who
commit in-prison offenses violates equal protection. None of these arguments persuades
us that the trial court erred.
Our review regarding eligibility for recall and resentencing under section 1172.75
is de novo. (People v. Tang (2025) 109 Cal.App.5th 1003, 105.)
4
At the time of defendant’s conviction and sentencing for assault in 2005, including
imposition of three enhanced terms for his prior prison commitments, “section 667.5,
subdivision (b) required trial courts to impose a one-year sentence enhancement for each
true finding on an allegation the defendant had served a separate prior prison term and
had not remained free of custody for at least five years.” (People v. Jennings (2019)
42 Cal.App.5th 664, 681.) Subsequently, section 1172.75 now provides, with an
exception that is not applicable here: “Any sentence enhancement that was imposed prior
to January 1, 2020, pursuant to subdivision (b) of Section 667.5 . . . is legally invalid.”
(§ 1172.75, subd. (a), italics added.)2
Critical to our analysis here, section 1172.75 provides in express language a
resentencing trigger that is expressly conditional. The statute authorizes recall and
resentencing only “[i]f” the superior court in which the defendant was sentenced
“determines that the [defendant’s] current judgment includes an enhancement described
in subdivision (a),” i.e., a prior prison term enhancement under section 667.5,
subdivision (b), for an offense other than a sexually violent one. (§ 1172.75, subd. (c),
italics added; see id., subd. (b) [specifying sentencing court as recall and resentencing
venue].) In reviewing statutory language, absent ambiguity, “[t]he statute’s plain
meaning controls.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.)
Also relevant to our analysis, section 1170.1, subdivision (c), provides: “In the
case of any person convicted of one or more felonies committed while the person is
2 The statute specifies that only prison prior enhancements “for a prior conviction for a sexually violent offense” remain valid. (§ 1172.75, subd. (c).)
5
confined in the state prison . . . and the law either requires the terms to be served
consecutively or the court imposes consecutive terms, the term of imprisonment for all
the convictions that the person is required to serve consecutively shall commence from
the time the person would otherwise have been released from prison.” (Italics added.)
In Escobedo, the reviewing court considered appeals by two different inmates who
filed petitions in the trial court for resentencing relief under section 1172.75. They did so
without awaiting CDCR’s assessment of whether they were potentially eligible for relief,
which Escobedo found was a necessary predicate to the orderly administration of the
statute’s recall and resentencing procedure. (Escobedo, supra, 95 Cal.App.5th at pp. 447-
Escobedo explained the significance of this “current judgment” restriction by
drawing on precedent outlining the well-established provisions of section 1170.1,
subdivision (c). (See Escobedo, supra, 95 Cal.App.5th at p. 452.) “ ‘It is well settled that
under section 1170.1(c), a term for an in-prison offense or multiple in-prison offenses
begins to run at the end of the prison term imposed for the original out-of-prison offenses.
[Citations.] . . . Thus, “the term for an in-prison offense does not become part of the
aggregate prison term imposed for those offenses which were committed ‘on the outside.’
Instead, the defendant is imprisoned for a total term consisting of the sum of his
aggregate sentence computed under section 1170.1(a) plus the new aggregate term
imposed under section 1170.1(c). [Citation.] The latter term starts to run at the end of
the prison term imposed for the defendant’s original ‘outside’ offense. [Citation.]”
[Citations.] [¶] Thus, [the defendant’s] consecutive sentence for his . . . in-prison offense
is not merged or aggregated with his original term for the . . . out-of-prison offense.
Instead, the two terms are treated as separate terms, with the term for the in-prison
offense beginning only when [the defendant] completes the term for his out-of-prison
offense.’ (In re Tate (2006) 135 Cal.App.4th 756, 764-765 [(Tate)]; see also People v.
Langston (2004) 33 Cal.4th 1237, 1242 [(Langston)] [“new crimes committed while in
7
prison are treated as separate offenses and begin a new aggregate term”].) (Italics
added.)
Enacted against this backdrop, section 1172.75 does not permit resentencing for
defendants serving time on convictions for in-prison offenses because those subsequent
sentences, as explained in Tate and Langston, only begin “to run at the end of” the
defendant’s original sentence, “does not become part of” the original sentence, nor are
“merged or aggregated with [the] original term,” and thus the new in-prison sentence
does not incorporate the original judgment’s prison priors, if any. (Escobedo, supra,
95 Cal.App.5th at p. 452.) Absent any enhancement for a prior prison commitment, no
recall or resentencing is triggered under section 1172.75. (Escobedo, at p. 452.)
Defendant’s quibbles with Escobedo are inconsequential. While defendant is
correct that Escobedo did not have to address the merits of the defendants’ eligibility
claim there, given its jurisdictional holding, we nevertheless find the court’s analysis
persuasive. We adopt the analysis to reject defendant’s eligibility claim here. Defendant
also observes that Tate and Langston were decided in different contexts than whether an
inmate may be eligible for resentencing under section 1172.75. But he does not explain
how the differences are significant in any way. Just as we adopt Escobedo’s statutory
analysis regarding the importance of the “current judgment” language in section 1172.75,
we similarly find its application of Tate and Langston persuasive and correct in
explaining why resentencing is not available in defendant’s circumstances.
Resisting this conclusion, defendant argues generally that the legislative intent
animating section 1172.75 is “to reduce sentences by providing complete and
8
comprehensive, i.e., both retrospective and prospective, relief from the prison-prior
enhancement.” (Citing Assem. Pub. Saf. Comm. Analysis, Rep. on Sen. Bill No. 483
(2020-2021 Reg. Sess.) July 13, 2021, p. 3.) Defendant contends that giving this purpose
“the widest possible application” to extend to his circumstances effectuates the
Legislature’s intent “to shorten longer and overly-punitive prison sentences.”
Contrary to defendant’s interpretation, however, “the words the Legislature chose
are the best indicators of its intent.” (Freedom Newspapers, Inc. v. Orange County
Employees Retirement System (1993) 6 Cal.4th 821, 826; accord, People v. Barner (2024)
100 Cal.App.5th 642, 648.) As Escobedo explained, the Legislature’s emphasis that
section 1172.75 applies where an inmate is “currently serving a term for a judgment” that
includes a prior prison term enhancement bars defendant’s interpretation. (§ 1172.75,
subd. (b).) This is because, as noted, defendant’s current sentence does not include such
priors, given that he already served the term on the judgment that did. (Escobedo, supra,
95 Cal.App.5th at p. 452; see also § 1172.75, subd. (b)(1) [to be eligible, the sentence the
defendant is “currently serving” must be “based on the [now prohibited prison prior]
enhancement”]; id., subd. (c) [eligibility requires that the defendant’s “current judgment”
includes a prison prior term].)3
3 We also note the Legislature explained its intent in enacting section 1172.75 in an uncodified preamble to the statute that suggests no intention to extend resentencing to defendants who have completed a term of imprisonment that included time for prison priors. Specifically, the preamble states “it is the intent of the Legislature to retroactively apply [the new limitations on prior prison term enhancements] to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.” (Stats. 2021, ch. 728, § 1.) A defendant who already served his or her [footnote continued on next page]
9
Defendant’s reliance by analogy on the youthful and elderly offender early parole
statutes, sections 3051 and 3055 respectively, is similarly misplaced. Defendant correctly
summarizes that courts have found the parole provisions of these statutes are not limited
by section 1170.1, subdivision (c)’s specification that sentences for in-custody offenses
commence only after the defendant has served his or her original sentence. (In re Hoze
(2021) 61 Cal.App.5th 309, 319; In re Trejo (2017) 10 Cal.App.5th 972, 988.) In Hoze,
for example, the court held that “a parole grant pursuant to section 3055 overrides
section 1170.1(c). Hoze is not required to serve his Thompson terms.” (Hoze, at p. 315;
see In re Thompson (1985) 172 Cal.App.3d 256, 260-261, 263 [origin of “Thompson
term” shorthand for in-custody offense sentences that, if consecutive, are subsequent to
original sentence].) Defendant’s analogy fails because the early parole statutes do not
have section 1172.75’s express limitation on recall and resentencing to current sentences
and judgments that include a prison prior. A difference in statutory language makes all
the difference, since we are bound by the words the Legislature chose.
Similarly distinguishable is In re Brisette (2025) 112 Cal.App.5th 147, which
defendant cited at oral argument. Brisette involved section 1172.2, which affords medical
release for incapacity or terminal illness, provided the defendant does not pose an
unreasonable risk of danger to public safety. In Brisette, two different superior courts—
first in Los Angeles and then in Kern County—reached differing conclusions on whether
term based on a prison prior is not serving a term of incarceration in jail or prison for that enhancement. The Legislature did not intend resentencing under section 1172.75 in such cases.
10
the defendant qualified for medical release. The first court had sentenced the defendant
on his original judgment of conviction, and then the second court subsequently
resentenced him based on his later conviction for in-prison offenses. The reviewing court
in Brisette determined the latter court’s conclusion concerning medical release controlled.
(Id. at p. 173.)
Brisette reached that determination based on the language of section 1172.2. As
Brisette explained, section 1172.2, subdivision (i), “directs that the judge of the
sentencing court (if possible) is to resolve the section 1172.2 petition.” (In re Brisette,
supra, 112 Cal.App.5th at p. 172.) Brisette also determined based on the language of
section 1172.2 that it “mandates that a single court resolve an inmate’s compassionate
release petition.” (Brisette, at p. 1172; see id. at pp. 1162-1163.)
Brisette harmonized section 1172.2 with section 1170.1, subdivision (c). Brisette
explained regarding the latter, “At its core, section 1170.1(c) does not actually operate to
impose two entirely separate and independent sentences. Instead, section 1170.1(c) is a
technical sentencing statute that addresses when an inmate begins “ ‘to serve’ consecutive
sentences” and “the time during which an inmate is actually serving a particular prison
term.” (Brisette, supra, 112 Cal.App.5th at p. 171.) Thus, “when a Thompson term is
involved, there remains a single total sentence. That single total sentence is composed of
two separate and distinct components: an outside-prison term and a Thompson term that
are calculated and derived separately from each other.” (Id. at pp. 171-172.) Because “a
Thompson term is merely a separate and distinct component of a single total sentence,”
and under authority “that the latest court to impose a sentence on an inmate in a multiple
11
case situation is considered to be the sentencing court,” Brisette held that the Kern
County superior court’s medical release determination controlled. (Id. at pp. 172-173.)
Defendant’s reliance on Brisette to undermine Escobedo is misplaced. Unlike
Brisette’s focus on a defendant’s overall sentence to properly apply section 1172.2,
regardless of the sentence’s component parts, those component parts or terms are critical
to section 1172.75’s application. Specifically, resentencing eligibility under
section 1172.75 depends on a sentence’s component terms, including that the defendant
must be “currently serving” the “term for a judgment” that includes a prison prior.
(§ 1172.75, subd. (b); Escobedo, supra, 95 Cal.App.5th at p. 452.) As Brisette
recognized, a sentence that includes a Thompson term consists of terms that are “derived
separately from each other,” as in the case of separate judgments of conviction for the
defendant’s outside and in-prison offenses. (Brisette, supra, 112 Cal.App.5th at p. 172.)
Escobedo and Brisette are thus consistent with each other. Indeed, citing Escobedo,
Brisette explained that “relief applicable to an outside-prison term will be unavailable
once the outside-prison term ends, even though the inmate is serving the in-prison term
component of his single total sentence.” (Brisette, at p. 172, fn. 13.)
In sum, section 1172.75 requires that the defendant must be “currently serving a
term for a judgment” that includes prison priors. (§ 1172.75, subd. (b).) In other words,
resentencing relief under the statute may be afforded on a “current . . . judgment” (ibid.;
id., subd. (c)) when the defendant is “currently serving a term of incarceration . . . for
added; § 1172.75, subd. (b).) Because defendant is not currently serving such a term, the
trial court did not err in determining he is ineligible for resentencing.
Finally, defendant argues that the Legislature’s decision to limit section 1172.75’s
application in this manner violates equal protection. We disagree. Perfect uniformity in
ameliorative statutory measures is not required. As our high court has recently observed,
“[A]ny retroactive sentencing remedy confined to a particular group of defendants will
inevitably undermine uniformity in some ways—even as it promotes it in others.”
(People v. Rhodius (2025) 17 Cal.5th 1050, 1066, italics omitted.)
Instead, the issue is not about assuring uniform application across the board, even
for disparate groups, but instead whether there is a rational basis for the Legislature’s
distinction. (People v. Hardin (2024) 15 Cal.5th 834, 850-851 [“pertinent inquiry is
whether the challenged difference in treatment is adequately justified under the applicable
standard of review”]; see People v. Wilkinson (2004) 33 Cal.4th 821, 838 [rational basis
test applies to equal protection challenge involving alleged sentencing disparity].) At
bottom, “we consider whether the challenged classification ultimately bears a rational
relationship to a legitimate state purpose. [Citation.] A classification in a statute is
presumed rational until the challenger shows that no rational basis for the unequal
treatment is reasonably conceivable.” (People v. Chatman (2018) 4 Cal.5th 277, 289; see
also Hardin, supra, 15 Cal.5th at p. 852 [“Rational basis review ‘sets a high bar’ for
litigants challenging legislative enactments”].)
Defendant cannot meet that burden here. The determinate sentencing law treats
in-prison offenses differently from out-of-prison offenses. (People v. McCart (1982)
13
32 Cal.3d 338, 340.) The Legislature intended in-prison crimes to be punished more
severely than crimes committed out of custody. (People v. White (1988) 202 Cal.App.3d
862, 869.) We find nothing irrational in this distinction. Defendant’s equal protection
challenge therefore fails.
DISPOSITION
The trial court’s order finding defendant ineligible for recall of his sentence and
resentencing under section 1172.75 is affirmed.
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
14
AI Brief
AI-generated · verify before citing
Holding. A defendant is ineligible for resentencing under Penal Code section 1172.75 if they have already completed the sentence containing the prior prison term enhancements and are currently incarcerated solely for subsequent in-custody offenses.
Issues
Whether a defendant is eligible for resentencing under Penal Code section 1172.75 when they are currently serving a consecutive term for in-custody offenses rather than the original judgment containing the prison priors.
Whether the exclusion of defendants serving consecutive in-custody sentences from section 1172.75 relief violates equal protection.