People v. Cortez

Filed 9/24/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, B348276 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. XWESA072463) v. DOUGLAS CORTEZ, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed. Leonard J. Klaif, 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, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.  Defendant and appellant Douglas Cortez (defendant) appeals from the trial court’s order denying his petition for recall and resentencing pursuant to Penal Code1 section 1170, subdivision (d)(1). We affirm. BACKGROUND I. Conviction and sentencing2 After jury trials in 2011 and 2012, defendant was convicted of one count of attempted murder (§§ 187, 664; count 2), evading an officer (Veh. Code, § 2800.2, subd. (a); count 3), unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 4), and shooting at an inhabited dwelling (§ 246; count 5). As to each count, the jury found true gang allegations pursuant to section 186.22, subdivision (b), and as to counts 2, 3, and 4, firearm allegations pursuant to sections 12022.7 and 12022.53, subdivisions (b), (c), and (e)(1) were also found true. (People v. Cortez (Oct. 23, 2013, B244720) [nonpub. opn.] (Cortez).) The court sentenced defendant to an aggregate term of 46 years plus eight months to life in state prison. On direct appeal, we modified the judgment as to counts 2 and 5 to reflect defendant’s sentence is life with the possibility of parole with minimum parole eligibility set at 15 years, with count 5 to run concurrently with count 2. (Cortez, supra, B244720.) We otherwise affirmed the judgment. (Ibid.) II. Petition for recall and resentencing On January 13, 2025, defendant filed a petition for recall and resentencing pursuant to section 1170, subdivision (d)(1). 1 All further undesignated references are to the Penal Code. 2 Because the facts of the underlying offense are not relevant to the current appeal, we do not include them. 2 Defendant alleged he was 17 years old at the time of the crime and has been incarcerated for over 15 years. He provided a letter of remorse and rehabilitation as required by section 1170, subdivision (d)(2)(D). Relying on People v. Heard (2022) 83 Cal.App.5th 608 (Heard), defendant argued entitlement to relief because he was sentenced to de facto life without the possibility of parole (LWOP). As such, defendant argued the trial court was obligated to recall his sentence and certify the matter to juvenile court for further proceedings consistent with Proposition 57 (as approved by voters, Gen. Elec. (Nov. 8, 2016)). The People opposed the petition. On June 6, 2025, defendant filed a supplemental brief in support of his petition. After entertaining the parties’ briefs and oral arguments, on July 11, 2025, the trial court denied defendant’s petition. During the hearing, the court and the parties discussed the then- recently published decision in People v. Cabrera (2025) 111 Cal.App.5th 650, along with People v. Olmos (2025) 109 Cal.App.5th 580 and People v. Munoz (2025) 110 Cal.App.5th 499, review granted3 June 25, 2025, S290828 (Munoz). Defendant timely filed his notice of appeal. 3 In granting review, the Supreme Court ordered briefing on the following issue: “Is a juvenile homicide offender sentenced to 50 years to life in prison entitled to recall and resentencing under Penal Code section 1170, subdivision (d)(1) on the ground that the sentence is the functional equivalent of life imprisonment without parole?” (People v. Munoz (June 25, 2025, S290828).) 3  DISCUSSION I. Applicable law A. Standard of review We apply de novo review where, as here, the appeal turns on questions of law and the application of law to undisputed facts. (People v. Ashford University, LLC (2024) 100 Cal.App.5th 485, 518.) B. Section 1170, subdivision (d)(1), section 3051, and the split of authority Under section 1170, subdivision (d)(1)(A), “[w]hen a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.” On its face, section 1170, subdivision (d), limits relief to juvenile offenders sentenced to LWOP. (People v. Olmos, supra, 109 Cal.App.5th at p. 583.) In Heard, however, our colleagues in the Fourth District held that denying the opportunity to petition for section 1170, subdivision (d)(1) relief to juvenile offenders sentenced to the functional equivalent of LWOP violates the constitutional guarantee to equal protection of the laws. (Heard, supra, 83 Cal.App.5th at pp. 612, 626–634; accord, People v. Cabrera, supra, 111 Cal.App.5th at p. 653; People v. Bagsby (2024) 106 Cal.App.5th 1040 [reaffirming Heard]; People v. Sorto (2024) 104 Cal.App.5th 435, 454 (Sorto) [following Heard and concluding there was no rational basis to treat differently “explicit LWOP offenders and functionally equivalent LWOP offenders”].) 4  Heard and the line of cases that has developed since opine, “[A] sentence is the functional equivalent of LWOP if it includes a ‘term of years with a parole eligibility date that falls outside the juvenile offender’s natural life expectancy’” regardless of a meaningful opportunity for release at an earlier date pursuant to section 3051. (Sorto, supra, 104 Cal.App.5th at p. 443.) Finding the plain language of section 1170, subdivision (d)(1) cannot be interpreted to include juvenile offenders not sentenced to LWOP, these courts have found the equal protection clause compels the conclusion that juvenile offenders sentenced to the functional equivalent of LWOP be included in those entitled to relief under the statute. These courts have also found the plain language of the statute compels the conclusion that, although People v. Franklin (2016) 64 Cal.4th 261 (Franklin) and section 3051 have cured the juvenile’s otherwise lengthy sentence so that it currently no longer operates as the functional equivalent of LWOP, this “‘does not change the fact that the sentence was a [functionally equivalent] life without parole sentence at the time it was imposed.’” (Sorto, supra, 104 Cal.App.5th at p. 447; see also Heard, supra, 83 Cal.App.5th at p. 629 [appellate court reversed the trial court on equal protection grounds, reasoning that § 1170, subd. (d)(1) “‘uses the phrase “was sentenced” and refers to the past’” and “[a]t the time Heard was sentenced, section 3051 had not yet been enacted, and he was required to serve his determinate term plus the full minimum period of confinement of each of his life sentences before becoming parole eligible”].) In undertaking an equal protection analysis, these courts were “unable to identify a rational basis for making juveniles sentenced to an explicitly designated life without parole term, but 5 not juveniles sentenced to the functional equivalent of life without parole, eligible to petition for resentencing under section 1170, subdivision (d)(1).” (Heard, supra, at p. 633.) Recently, other Courts of Appeal have parted ways with Heard and its rationale. These courts have found, in effect, there are no longer de facto LWOP sentences for juvenile offenders because section 3051 provides a meaningful opportunity for release during the 25th year of incarceration. (See People v. Lara (2025) 115 Cal.App.5th 484, review granted Dec. 30, 2025, S294095; People v. Isayev (2025) 113 Cal.App.5th 1117, review granted Nov. 12, 2025, S292860 (Isayev); People v. Baldwin (2025) 113 Cal.App.5th 978; People v. Thompson (2025) 112 Cal.App.5th 1058, review granted Sept. 24, 2025, S292540; People v. Ortega (2025) 111 Cal.App.5th 1252, review granted Sept. 17, 2025, S292070 (Ortega); Munoz, supra, 110 Cal.App.5th 499, review granted.) In short, these courts have found “[f]irst, under the plain language of [section 1170, subdivision (d)(1)], [the defendants were] not sentenced to life in prison without the possibility of parole. (See § 1170(d)(1)(A).) And second, [defendants’] equal protection claim[s are] moot because under clear and binding precedent [they were] not sentenced to a prison term that currently violates the Constitution (i.e., a sentence that is the functional equivalent of life in prison without the possibility of parole).” (Ortega, supra, at p. 1265, underscoring added.) C. Equal protection challenges In People v. Hardin (2024) 15 Cal.5th 834, 850–851 (Hardin), the California Supreme Court “clarified the governing analytical framework” for claims under the equal protection clause and found “when plaintiffs challenge laws drawing 6 distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, … [t]he only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review. The burden is on the party challenging the law to show that it is not.” Accordingly, here, the appropriate inquiry is whether there is a rational basis justifying section 1170, subdivision (d)(1)’s disparate treatment of individuals who, like defendant, were sentenced to terms that might have been defined as the functional equivalent of LWOP. (See Hardin, supra, 15 Cal.5th at p. 851.) “Rational basis review ‘sets a high bar’ for litigants challenging legislative enactments. [Citation.] … ‘Coupled with a rebuttable presumption that legislation is constitutional, [rational basis review] helps ensure that democratically enacted laws are not invalidated merely based on a court’s cursory conclusion that a statute’s tradeoffs seem unwise or unfair.’ [Citation.] [¶] Under this deferential standard, we presume that a given statutory classification is valid ‘until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable.’” (Id. at p. 852; see also People v. Williams (2024) 17 Cal.5th 99, 127 [reaffirming Hardin, “[b]ecause these ‘legislative policy choices’ are not ‘irrational,’ they are not ‘impermissible as a matter of equal protection’”].) “‘If a plausible basis exists for the disparity, courts may not second-guess its “‘wisdom, fairness, or logic.’”’” (Hardin, at p. 852.) 7 II. Analysis A. Defendant’s sentence of 46 years eight months to life does not constitute the functional equivalent of LWOP In People v. Caballero (2012) 55 Cal.4th 262, 268, our Supreme Court defined sentences that constitute the functional equivalent of LWOP as those with “a parole eligibility date that falls outside the juvenile offender’s natural life expectancy.” Later decisions have refined this standard, but no published decision has found a sentence as short as 46 years to life to constitute functional LWOP, and we decline to expand the doctrine to such terms. Moreover, given defendant is eligible for section 3051, youthful offender parole, at age 41, even if his sentence as pronounced were defined as de facto LWOP, it no longer operates as the “functional equivalent of LWOP.” While this disposes of the issue before us, given the importance of the equal protection issue and the split in appellate authority, we address the broader constitutional claim. B. Section 1170, subdivision (d) does not apply to functional LWOP sentences As pointed out in Heard, the plain language of section 1170, subdivision (d)(1) only applies to individuals who committed their offense under the age of 18 and were sentenced to LWOP. (Heard, supra, 83 Cal.App.5th at p. 629.) We agree. “In enacting section 1170, subdivision (d), the Legislature drew a line at life without the possibility of parole; it can draw other lines if it wants to.” (Munoz, supra, 110 Cal.App.5th at p. 510, review granted.) As defendant was not sentenced to LWOP, section 1170, subdivision (d) does not apply to him. 8  C. Application of section 1170, subdivision (d)(1) only to explicit LWOP sentences does not violate equal protection of the laws Because defendant relies on the precedent created in Heard et al., he does not make his own equal protection claim and, instead, invites us to follow their line of reasoning. We respectfully disagree with the Heard line of cases. Instead, we agree with Ortega and the line of cases that has developed since. 1. The flawed analysis of Heard et al. The Heard line of cases rests on flawed equal protection analysis. Rather than place the burden on the defendant to “‘“negat[e] every conceivable basis”’” that might support the statutory disparity between explicit LWOP and other lengthy juvenile sentences (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881), it appears Heard and Sorto placed the burden on the Attorney General and, seemingly, even themselves. In Sorto, the panel discussed each of the potential “rational bas[es]” for the Legislature’s actions in restricting section 1170, subdivision (d)(1) to explicit LWOP sentences, and while negating each potential basis, the court repeated some version of, “[t]he Attorney General suggests no reason—nor can we conceive of any on our own.” (Sorto, supra, 104 Cal.App.5th at p. 451.) In Heard, the panel concluded, “We can conceive of no legitimate reason for making juvenile offenders sentenced to explicit life without parole terms eligible to seek resentencing but not juvenile offenders sentenced to the equivalent of a life without parole sentence,” and “[t]he People’s sole justification for the differential treatment is that the Legislature ‘could have reasonably concluded that the punishment of [life without parole] imposed on those under age 18 could be excessive and this was an 9 appropriate means of reform by allowing for reconsideration of such a sentence.’” (Heard, supra, 83 Cal.App.5th at p. 632, italics added.) The Heard and Sorto opinions do not discuss the reasons, if any, offered by the defendants as to why the distinction between the two categories was not rational. Thus, the burden was not properly placed on the “party challenging the law.” (Hardin, supra, 15 Cal.5th at pp. 850–851.) Furthermore, the Heard line of cases adopts a classification—functional equivalent of LWOP—originally created to aid in Eighth Amendment analysis. In Hardin, the court noted, in an effort to address Eighth Amendment concerns, “[t]he Legislature enacted section 3051 to bring California juvenile sentencing law into line with Graham [v. Florida (2010) 560 U.S. 48], Miller [v. Alabama (2012) 567 U.S. 460], and [People v.] Caballero[, supra, 55 Cal.4th at p. 268].” (Hardin, supra, 15 Cal.5th at p. 845.) The court observed, “section 3051 provided for youth offender parole hearings at which the Board of Parole Hearings must provide ‘a meaningful opportunity’ for release (§ 3051, subd. (e)) ….” (Ibid.; see also Franklin, supra, 63 Cal.4th at p. 268 [held § 3051 remedied any 8th Amend. defects in sentencing of juvenile offenders].) Use of the “functional equivalent” label to evaluate section 1170, subdivision (d)(1), when the plain language is clear, is error; especially, where defendants sentenced as juveniles are “now serving a life sentence that includes a meaningful opportunity for release” and are “not serving an LWOP sentence or its functional equivalent.” (Franklin, supra, at pp. 279–280.) 2. Equal protection is not violated The legislative history of Senate Bill No. 9 (2011–2012 Reg. Sess.), which led to enactment of section 1170, now-subdivision 10 (d)(1), demonstrates the Legislature intended to proceed incrementally with respect to addressing the larger problem of excessive punishment for juveniles. (People v. Thompson, supra, 112 Cal.App.5th at p. 1076.) Senate Bill No. 9 “was described as a ‘“modest and narrowly focused piece of legislation.”’ (Thompson, at p. 1077.) Specifically, in response to the potential for petitions for writ of habeas corpus alleging “8th amendment grounds of cruel and unusual punishment,” the Legislature hoped to “simplif[y] the process for a small group of specified inmates,” and “offer a less expensive alternative” to filing a habeas corpus petition. (Sen. Appropriations Com. Fiscal Summary of Sen. Bill No. 9 (2011–2012 Reg. Sess.) as introduced May 23, 2011, pp. 3, 2, italics added; see id. at p. 1 [“This bill authorizes the 293 [juvenile offenders] serving LWOP” sentences to petition under the provision].) Despite the sweeping and automatic changes created by section 3051, “[t]he Legislature did not envision that the original sentences of eligible youth offenders would be vacated and that new sentences would be imposed to reflect parole eligibility …”; instead, the “inmate remains bound by [their original] sentence.” (Franklin, supra, 63 Cal.4th at p. 278.) However, Eighth Amendment challenges are “moot” because both actual LWOP and de facto LWOP defendants are now serving reformed sentences under section 3051. (Isayev, supra, 113 Cal.App.5th at p. 1130, review granted.) Therefore, LWOP offenders are still positioned differently from functional LWOP offenders because, as discussed, “section 3051 d[oes] not alter the defendant’s original sentence,” and they remain sentenced to LWOP. (Heard, supra, 83 Cal.App.5th at p. 629.) 11  This difference is a rational basis for treating these two groups separately. Though it is not our burden to find rational bases for the Legislature’s actions, we propose a few. First, applying section 1170, subdivision (d)(1) to only explicit LWOP sentences creates a bright line that does not require judicial determination of a petitioner’s eligibility. Requiring the statute to include functional LWOP has already resulted in litigation over basic eligibility that could not have been anticipated by the Legislature. By limiting the statute to the estimated 293 inmates sentenced to LWOP as juveniles, the Legislature was able to predict and measure the fiscal impact of the legislation. Instead, litigation over basic eligibility requires trial courts to hold hearings, such as was done here, to determine whether each petitioner’s sentence is the functional equivalent of LWOP. Second, opening the statute to those sentenced to the functional equivalent of LWOP requires an unknown number of full resentencing hearings. Upon receipt of a properly pled petition—and a hearing over basic eligibility—section 1170, subdivision (d)(5) requires the court to recall the sentence and hold a hearing where the petitioner will be sentenced anew. As evidenced by the amount of litigation since the Heard ruling, reading section 1170, subdivision (d)(1) to allow all juveniles sentenced to lengthy sentences to proceed with a resentencing petition creates an enormous strain on scarce and thinly spread judicial resources. This too results in a vastly different impact than originally contemplated. Third, section 3051 comprehensively addressed the Eighth Amendment concerns that arise when juveniles are sentenced to terms that do not allow them a meaningful opportunity for release in their lifetime, and it did so without any need for 12 inmates to petition or courts to conduct hearings. Section 1170, subdivision (d)(1) was enacted to address specific concerns surrounding sentencing children to LWOP. Despite the newfound eligibility for section 3051 parole hearings, section 1170, subdivision (d)(1) remains important for explicit LWOP inmates because it allows them to escape the formal LWOP designation—a classification the Legislature has determined is inappropriate for juveniles.4 Because juveniles remain formally sentenced to LWOP, they remain formally classified as having received one of society’s most serious penalties, carrying unique legal and social consequences not experienced by those originally sentenced to the functional equivalent. In short, it is not appropriate to read the statute to mean something more than the plain language and legislative history provide. Nor is it our place to conjure up rational bases for the Legislature’s actions. Instead, it is for defendant to overcome the “‘rebuttable presumption that [section 1170, subdivision (d)] is constitutional.’” (Hardin, supra, 15 Cal.5th at p. 852.) Each of the above, and perhaps many others, are rational bases for the Legislature’s decision to continue to treat juveniles sentenced to LWOP differently than those sentenced to lengthy indeterminate terms. So long as “‘a plausible basis exists for the disparity,’” it is 4 Defendant’s contention that the Legislature’s failure to repeal section 1170, subdivision (d)(1) is evidence of its approval of Heard is unpersuasive. Because “legislative inaction is ‘“a weak reed upon which to lean”’” (Troy Gold Industries, Ltd. v. Occupational Safety & Health Appeals Bd. (1986) 187 Cal.App.3d 379, 391, fn. 6), and the very question is the subject of divide among the Courts of Appeal and currently pending before our Supreme Court, the Legislature’s silence is an unreliable gauge of its intent. 13 not for us to “‘second-guess its “‘wisdom, fairness, or logic.’”’” (Ibid.) “‘“‘Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.’”’” (Johnson v. Department of Justice, supra, 60 Cal.4th at p. 889.) DISPOSITION The trial court’s order denying defendant’s section 1170, subdivision (d)(1) petition is affirmed. CHAVEZ, Acting P. J. I concur: GOORVITCH, J. 14 People v. Cortez B348276 RICHARDSON, J., Concurring. I concur in the majority’s disposition affirming the trial court’s denial of Douglas Cortez’s petition for recall and resentencing under Penal Code section 1170, subdivision (d)(1). I agree that Cortez’s sentence of 46 years eight months to life is not the functional equivalent of life without the possibility of parole (LWOP) for the reasons stated in the Discussion, parts II.A. and II.B.: not only is the sentence too short to constitute an effective life sentence under current law, but Cortez is also eligible for a section 3051 youth offender parole hearing. (People v. Ortega (2025) 111 Cal.App.5th 1252, 1262 (Ortega), review granted Sept. 17, 2025, S292070.) Because Cortez is not among the group of defendants with sentences functionally equivalent to LWOP, his equal protection claim premised upon the disparate treatment of that group necessarily fails. (See People v. Williams (2024) 17 Cal.5th 99, 121 [a defendant’s constitutional challenge fails “[i]f [he] cannot demonstrate that the law is unconstitutional as applied to him”].) I therefore would not reach the equal protection issue addressed in the Discussion, part II.C. (See, e.g., People v. Franklin (2016) 63 Cal.4th 261, 268 [enactment of Pen. Code, § 3051 made constitutional claim moot]; Ortega, supra, 111 Cal.App.5th at p. 1265 [same], review granted; People v. Munoz (2025) 110 Cal.App.5th 499, 507–508, 512 [declining to reach equal protection claim because the defendant was not serving a sentence functionally equivalent to LWOP], review granted June 25, 2025, S290828.) Accordingly, I do not join that portion of the majority opinion. RICHARDSON, J. 2