People v. Pennix CA2/7

Opinion

Filed 9/15/26 P. v. Pennix CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B348767

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA024234) v.

LADERO PENNIX,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Reversed and remanded with directions. Michael J. Hanagan, 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, Senior Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________ Ladero Pennix appeals from the superior court’s August 26, 2025 order denying his petition for recall and resentencing under Penal Code section 1170, subdivision (d)(1) (section 1170(d)(1))1 and his motion to transfer the case to juvenile court. Pennix was convicted in 1995 following his guilty plea to crimes he committed when he was 16 years old, including two murders, two attempted murders, and 10 robberies. The trial court sentenced him to an aggregate sentence of 72 years eight months to life, plus two life sentences in state prison. Section 1170(d)(1) allows juvenile offenders to petition for recall and resentencing after 15 years of incarceration if they were sentenced to life without the possibility of parole (LWOP). Pennix argued in his petition for resentencing that his sentence was the functional equivalent of an LWOP sentence, and therefore, denial of his petition would violate his constitutional right to equal protection of the law. Pennix also filed a motion to transfer the case to juvenile court to hold a hearing under Proposition 57, The Public Safety and Rehabilitation Act of 2016 (Cal. Const., art. I, § 32) (Proposition 57). The superior court denied Pennix’s petition and motion to transfer, explaining that notwithstanding his lengthy sentence, Pennix had already been granted three youth offender parole hearings, and given his potential eligibility for parole under section 3051 as a youth offender, he would have a meaningful opportunity to live his life outside of prison. On appeal, Pennix contends and the People concede that a sentence of 72 years eight months to life, plus two life sentences 1 Further undesignated statutory references are to the Penal Code.

2 is the functional equivalent of an LWOP sentence, and therefore, Pennix is eligible for resentencing under equal protection principles as set forth in People v. Heard (2022) 83 Cal.App.5th 608 (Heard), People v. Sorto (2024) 104 Cal.App.5th 435 (Sorto), and People v. Bagsby (2024) 106 Cal.App.5th 1040, 1056 (Bagsby). Pennix further argues that his sentence is effectively 86 years eight months to life in light of the fact his two life terms would require him to serve an additional 14 years before he would be eligible for parole. Although in People v. Munoz (2025) 110 Cal.App.5th 499, 507, review granted June 25, 2025, S290828 (Munoz), a majority of this court decided that a 50-years-to-life sentence is not the functional equivalent of an LWOP sentence, we agree that an effective sentence of 86 years eight months to life is the functional equivalent of an LWOP sentence because under that sentence Pennix would not be released until he is 102 years old. We also agree with Pennix and the Attorney General that, as the Courts of Appeal concluded in Heard, Sorto, and Bagsby, Pennix’s eligibility for future youthful offender parole hearings under section 3051 does not change the fact that Pennix is eligible for resentencing relief under section 1170(d)(1) because he “was sentenced to” the functional equivalent of an LWOP sentence. We reverse the superior court’s order denying Pennix’s petition for recall and resentencing and remand for the court to determine whether by a preponderance of the evidence one of the four qualifying circumstances enumerated in section 1170, subdivision (d)(2), is true. If the court finds one of the circumstances is true, it shall recall Pennix’s sentence. We also conditionally reverse the superior court’s order denying Pennix’s motion to transfer the case to the juvenile court.

3 If the court recalls Pennix’s sentence, the court shall grant Pennix’s motion to transfer the case to juvenile court for a retroactive transfer hearing under Welfare and Institutions Code section 707, subdivision (a). However, if the superior court does not find one of the qualifying circumstances true and again denies Pennix’s section 1170(d)(1) petition, the court shall deny the motion to transfer.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1995 Pennix pleaded guilty to two counts of murder (§ 187, subd. (a)), two counts of attempted murder (§§ 187, subd. (a), 664), and 10 counts of robbery (§ 211). He also admitted that he personally used a firearm in the commission of the two murders and one of the robbery counts (§ 12022.5, subd. (a)) and he inflicted great bodily injury in the commission of the two attempted murders (§ 12022.7). The trial court imposed sentences of 25 years to life on each of the murder counts, life sentences on the attempted murder counts, determinate terms on six of the robbery counts (with the sentences on the other four counts stayed), plus determinate terms on the firearm and great bodily injury enhancements. The minute order reflects (incorrectly) that the aggregate sentence imposed was “74 years plus 4 life sentences.” (Capitalization omitted.) We agree with Pennix that the sentences imposed on 4 each count add up to an aggregate sentence of 72 years eight months to life, plus two life terms.2 In September 2023 Pennix filed a petition for resentencing pursuant to section 1170(d)(1), in which he stated he was 16 years old at the time of his crime; he was sentenced to 74 years, plus four life sentences (as reflected in the trial court’s minute order); he served at least 15 years of his sentence; and he met the other requirements for relief under section 1170(d)(1). Pennix’s petition included a handwritten statement explaining his remorse for having committed the crimes. The form petition stated at the top of the document that the petition was being filed under section 1170(d)(1) and Heard, supra, 83 Cal.App.5th 608. Pennix attached documentation of his rehabilitation, including certificates showing completion of multiple programs, classes he had taken, letters of recommendation, and letters of remorse he sent to victims of his crimes. In October 2023 the superior court denied Pennix’s petition without a hearing, erroneously believing that Pennix was seeking relief under former section 1170, subdivision (d)(1), now codified as section 1172.1. We reversed the order denying Pennix’s petition and remanded for the superior court to consider the petition under current section 1170(d)(1) in light of Heard and Sorto and “any other decisions addressing whether denial of a petition for resentencing relief under section 1170(d)(1) for a juvenile offender sentenced to a lengthy term-of-years sentence 2 We calculated Pennix’s sentence using the terms imposed for each count as reflected in the minute order. The record does not contain a reporter’s transcript from the 1995 sentencing.

5 denies the petitioner equal protection of the law under the United States or California.” (People v. Pennix (Feb. 13, 2025, B336054) [nonpub. opn.].) At the August 26, 2025 hearing on Pennix’s section 1170(d)(1) petition and motion to transfer, the superior court observed that Pennix had three parole suitability hearings. In 2019 Pennix stipulated that he was unsuitable for release for three years; in August 2022 Pennix voluntarily waived his right to have a parole hearing for one year; and in 2023 Pennix stipulated to a finding of unsuitability for three years. Further, a parole suitability hearing was set for May 2026. The court concluded that Pennix’s sentence was not the functional equivalent of an LWOP sentence because he had at least three parole hearings at which he stipulated not to be released or waived his right to a hearing, and he had a fourth parole hearing “on the horizon.”3 Therefore, Pennix “has the present ability to get out of jail if he wants to.” The court in its minute order added that because Pennix already had three youth offender parole hearings, “[i]t appears to this court that [Pennix] will have a 3 In his respondent’s brief, the Attorney General noted that Pennix’s appeal could become moot depending on what happened at the May 1, 2026 parole suitability hearing, citing the California Department of Corrections and Rehabilitation record of the California Incarcerated Records and Information Search (CIRIS). On our own motion we take judicial notice of the CIRIS record for Pennix, which states that at Pennix’s May 1, 2026 parole hearing the Board of Parole Hearing denied parole for five years and tentatively scheduled the next hearing for May 2031. (Evid. Code, §§ 452, subd. (c), 459, subd. (a); see https://ciris.mt.cdcr.ca.gov/details?cdcrNumber=J94038 [as of September 14, 2026].)

6 meaningful opportunity to live his life outside of prison.” The court also denied Pennix’s motion to transfer the case to juvenile court on the basis it had not reopened the sentence under section 1170(d)(1). Pennix timely appealed.

DISCUSSION

A. Juvenile Offender Resentencing Under Section 1170(d)(1) Section 1170(d)(1) provides, “When 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.” (§ 1170, subd. (d)(1)(A).) The Legislature added subdivision (d)(1) to section 1170 in 2012 (initially codified as subdivision (d)(2)) by the enactment of Senate Bill No. 9 (2011-2012 Reg. Sess.) (Senate Bill 9), following the United States Supreme Court’s decision in Graham v. Florida (2010) 560 U.S. 48 (Graham), “out of concern for juvenile offenders who were sentenced to [LWOP].” (Munoz, supra, 110 Cal.App.5th at p. 504, review granted; see In re Kirchner (2017) 2 Cal.5th 1040, 1049.) The United States Supreme Court in Graham, supra, 560 U.S. at page 82 held the Eighth Amendment bars the imposition of an LWOP sentence for a juvenile offender who did not commit homicide. The Graham court explained, “A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that 7 term.” (Graham, at p. 82.) Section 1170(d)(1) similarly “provides an avenue for juvenile offenders serving terms of life without parole to seek recall of their sentences and resentencing to a term that includes an opportunity for parole.” (In re Kirchner, supra, 2 Cal.5th at p. 1049.) A petition under section 1170(d)(1) must include a statement describing the defendant’s remorse, work toward rehabilitation, and a statement that one of four qualifying circumstances is true.4 (§ 1170, subd. (d)(2).) If the court finds by a preponderance of the evidence that one of the four qualifying statements is true, “the court shall recall the sentence and commitment previously ordered and hold a hearing to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1170, 4 The four qualifying circumstances under section 1170, subdivision (d)(2), are: “(A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law. [¶] (B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall. [¶] (C) The defendant committed the offense with at least one adult codefendant. [¶] (D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.”

8 subd. (d)(5), italics added.) Section 1170, subdivision (d)(6), sets forth a non-exclusive list of “factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole.” At the resentencing hearing, “a trial court has broad discretion to select the term of imprisonment, run sentences concurrently or consecutively, and strike or dismiss enhancements. (See §§ 186.22, subd. (d), 669, 1385, 12022, subd. (f).) . . . [¶] . . . [R]ecall and resentencing also entitles eligible offenders to the benefits of retroactive ameliorative changes to the law. [Citation.] For example, if the court were to recall [a defendant’s] sentence, his case might be sent to juvenile court under Proposition 57.” (Sorto, supra, 104 Cal.App.5th at p. 449.)

B. Pennix’s 86 Years Eight Months-to-life Sentence Is the Functional Equivalent of an LWOP Sentence for Purposes of Equal Protection As discussed, the United States Supreme Court in Graham, supra, 560 U.S. at page 82 held the Eighth Amendment prohibits the imposition of an LWOP sentence for a juvenile nonhomicide offender. Two years later the court decided Miller v. Alabama, 567 U.S. 460, 465 (Miller), which held the Eighth Amendment prohibits mandatory LWOP sentences for juvenile homicide offenders.5 In the same year the California Supreme Court in 5 The Miller court held that in sentencing a juvenile homicide offender the trial court must have the ability to impose a sentence less than LWOP after taking into account youth- related factors and whether the offender may be rehabilitated. (Miller v. Alabama, supra, 567 U.S. at p. 477.)

9 People v. Caballero (2012) 55 Cal.4th 262 (Caballero) applied the holding in Graham to a 110 years-to-life sentence, describing the sentence as a “term-of-years sentence that amounts to the functional equivalent of a life without parole sentence.” (Caballero, at pp. 265, 267-268.) The Caballero court found “sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender’s natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.” (Id. at p. 268.) In People v. Contreras (2018) 4 Cal.5th 349, 356 (Contreras), the California Supreme Court considered “whether a lengthy term-of-years sentence, though not clearly exceeding a juvenile offender’s natural lifespan, may nonetheless impinge on the same substantive concerns that make the imposition of LWOP on juvenile nonhomicide offenders impermissible under the Eighth Amendment.” (Id. at p. 364.) The Contreras court concluded that sentences of 50 years or more to life for juvenile nonhomicide offenders were the functional equivalent of LWOP sentences for purposes of the Eighth Amendment because, as contemplated by Graham, (1) “[c]onfinement with no possibility of release until age 66 or age 74 seems unlikely to allow for reintegration” into society; (2) a juvenile offender who “has no chance to leave prison for 50 years ‘has little incentive to become a responsible individual’”; (3) a 50-years-to-life sentence, “though less harsh than LWOP, is still ‘an especially harsh punishment for a juvenile,’ who ‘will on average serve more years and a greater percentage of his life in prison than an adult offender’”; (4) “Graham’s observation that juveniles have limited ability to consider consequences when making decisions [citation] applies 10 to a sentence of 50 years to life just as it does to a sentence of LWOP”; and (5) “a judgment that a juvenile offender will be incorrigible for the next 50 years is no less ‘questionable’ than a judgment that the juvenile offender will be incorrigible ‘forever.’” (Contreras, at pp. 368-369.) The Courts of Appeal in Heard, Sorto, and Bagsby reviewed this history of juvenile offender sentencing in the Eighth Amendment context and concluded that lengthy term-of-years sentences of over 100 years to life (in Bagsby a sentence of 40 years to life, plus a determinate term of 67 years; in Sorto a sentence of 130 years to life, plus a determinate term of 10 years; and in Heard a sentence of 80 years to life, plus a determinate term of 23 years) were the functional equivalent of LWOP sentences for purposes of an equal protection challenge to section 1170(d)(1). (Bagsby, supra, 106 Cal.App.5th at pp. 1047, 1056; Sorto, supra, 104 Cal.App.5th at pp. 440, 442-444, 454; Heard, supra, 83 Cal.App.5th at pp. 614-617, 633-634; cf. People v. Mendez (2010) 188 Cal.App.4th 47, 50, 68 (Mendez) [sentence of 84 years to life was “the equivalent of LWOP” and constituted cruel and unusual punishment].) In Munoz, supra, 110 Cal.App.5th at page 503, review granted, a majority of this court concluded in the equal protection context that a 50-years-to-life sentence is not the functional equivalent of an LWOP sentence. The majority distinguished Heard, Sorto, Bagsby, and Mendez on the basis those cases “involved sentences with minimum parole eligibility dates much greater than 50 years.” (Munoz, at pp. 507-508.) Further, unlike the defendant in Caballero, supra, 55 Cal.4th 262 (who was sentenced to 110 years to life), “Munoz will be 65 years old when he becomes eligible for parole . . . and will have a realistic 11 opportunity to obtain release from prison during his expected lifetime.” (Munoz, at p. 508; accord, People v. Thompson (2025) 112 Cal.App.5th 1058, 1062, review granted Sept. 24, 2025, S292540 [“Thompson fails to demonstrate that the life without parole limitation on eligibility for section 1170(d) relief has no rational basis, and is therefore unconstitutional, as applied to juvenile homicide offenders who were sentenced to serve 50 years to life.”]; cf. People v. Cabrera (2025) 111 Cal.App.5th 650, 653 [agreeing with the Attorney General’s concession that in light of the Supreme Court’s holding in Contreras, the defendant “‘who received the same sentence [of 50 years to life], should be entitled to seek resentencing relief under section 1170, subdivision (d)(1)’”].) Pennix urges us to apply the reasoning in Heard, Sorto, and Bagsby to conclude his effective sentence of 86 years eight months to life is the functional equivalent of an LWOP sentence. As a threshold matter, Pennix is correct that his sentence of 72 years eight months to life plus two life terms will require him to serve 86 years eight months prior to his being eligible for parole. Section 3046, subdivision (a)(1), requires a defendant sentenced to a life term serve seven years in custody prior to becoming eligible for parole, and section 3046, subdivision (b), provides that “[if] two or more life sentences are ordered to run consecutively to each other . . . , an inmate so imprisoned shall not be paroled until he or she has served the term specified in subdivision (a) on each of the life sentences that are ordered to run consecutively.” (See People v. Franklin (2016) 63 Cal.4th 261, 273 (Franklin) [under § 3046, “where two indeterminate sentences run consecutively, a defendant must serve the full minimum term of each before becoming eligible for parole”].)

12 We agree with the Courts of Appeal in Heard, Sorto, and Bagsby that lengthy term-of-years sentences for juvenile offenders that fall outside the offenders’ natural life expectancy, for example, where the defendant would be 100 or more years old when eligible for release, are the functional equivalent of explicit LWOP sentences for purposes of an equal protection challenge to section 1170(d)(1). (See Bagsby, supra, 106 Cal.App.5th at p. 1056; Sorto, supra, 104 Cal.App.5th at pp. 440, 442-444, 454; Heard, supra, 83 Cal.App.5th at pp. 614-617.) This court in Munoz distinguished the 50-years-to-life sentence in that case from lengthy term-of-year sentences where a defendant will be released well after his lifetime, observing a “sentence of 50 to life is not the functional equivalent of life without the possibility of parole, but sentences of 88 to life, 103 to life, 107 to life, and 140 to life are.” (Munoz, supra, 110 Cal.App.5th at p. 510, review granted; see People v. Thompson, supra, 112 Cal.App.5th at p. 1073, review granted [sentences in Heard and Sorto “clearly exceeded natural life expectancy and were therefore functionally equivalent to life without parole as an actuarial matter”].) Pennix’s effective sentence of 86 years eight months will likewise result in his release after his natural life expectancy, when he is at least 102 years old. (See e.g., Mendez, supra, 188 Cal.App.4th at pp. 50, 68 [84 years-to-life sentence was functional equivalent of LWOP sentence].)

C. The Availability of Parole Under Section 3051 Does Not Moot Pennix’s Equal Protection Claim with Respect to Section 1170(d)(1) In 2013, a year after enactment of section 1170(d)(1), the Legislature added section 3051 and modified other sections of the 13 Penal Code, effective January 1, 2014. (See Stats. 2013, ch. 312, § 4.) Section 3051 requires the Board of Parole Hearings to conduct a youth offender parole hearing for specified juvenile offenders during the 15th, 20th, or 25th year of their incarceration, depending on the controlling offense (the offense or enhancement for which the longest term of imprisonment was imposed). (§ 3051, subds. (a)(1), (b); Franklin, supra, 63 Cal.4th at p. 277.) Specifically, “[a]n offender sentenced to a determinate term becomes eligible for parole after 15 years ([§ 3051,] subd. (b)(1)); an offender sentenced to an indeterminate life term of fewer than 25 years to life becomes eligible after 20 years (id., subd. (b)(2)); and an offender sentenced to an indeterminate life term of 25 years to life, or an offender sentenced to life without parole for a crime committed before the age of 18, becomes eligible after 25 years (id., subd. (b)(3), (4)).”6 (People v. Hardin (2024) 15 Cal.5th 834, 843.) Following the enactment of section 3051, the California Supreme Court in Franklin, supra, 63 Cal.4th at page 268 considered whether a juvenile offender’s Eighth Amendment challenge to his 50-years-to-life sentence for first degree murder with a firearm enhancement was rendered moot by section 3051. The court explained that section 3051 and related provisions were designed “to bring juvenile sentencing into conformity with Graham, Miller, and Caballero” and “to ensure [juvenile 6 Although section 3051 did not initially apply to juvenile offenders sentenced to LWOP, in 2017 the Legislature expanded the section to include juvenile LWOP offenders, making them eligible for youth offender parole hearings after their 25th year of incarceration. (Stats. 2017, ch. 684, § 1.5; see People v. Hardin, supra, 15 Cal.5th at p. 845.)

14 offenders] will have a meaningful opportunity for release no more than 25 years into their incarceration.” (Franklin, at p. 277.) Although the defendant’s sentence was not changed, his Eighth Amendment challenge became moot because the defendant was “now serving a life sentence that includes a meaningful opportunity for release,” and therefore “no Miller claim arises here.” (Id. at pp. 279-280.) As discussed, the superior court in this case concluded Pennix’s equal protection challenge with respect to section 1170(d)(1) was moot because Pennix would be eligible for release at a future youth offender parole hearing under section 3051. But we agree with Pennix and the Attorney General that, unlike the Eighth Amendment challenge at issue in Franklin, Pennix’s eligibility for parole under section 3051 does not render his equal protection challenge moot in light of the statutory language in section 1170(d)(1). In their equal protection analysis, the Courts of Appeal in Sorto and Heard focused on the language in section 1170(d)(1) that a juvenile offender is eligible for relief if the offender “was sentenced” to LWOP, concluding the statute, by its plain language, did not require that the defendant currently be serving an LWOP sentence. (Sorto, supra, 104 Cal.App.5th at p. 448 [“the plain language of section 1170(d) does not require that the defendant currently be serving an LWOP sentence”]; Heard, supra, 83 Cal.App.5th at p. 629 [“[a]lthough under Franklin, [the defendant’s] sentence as it currently operates is no longer the functional equivalent of life without parole, this does not change the fact that the sentence was a de facto life without parole sentence at the time it was imposed”]; see Bagsby, supra, 106 Cal.App.5th at pp. 1058-1059 [agreeing with the analysis in 15 Sorto and Heard]; People v. Lopez (2016) 4 Cal.App.5th 649, 654- 655 (Lopez) [modification of LWOP sentences to life with the possibility of parole following Graham did not render defendants ineligible for resentencing relief under § 1170, former subdivision (d)(2) (now § 1170(d)(1)]; cf. People v. Superior Court of Riverside County (Valdez) (2025) 108 Cal.App.5th 791, 795, 801 [affirming denial of relief under § 1170(d)(1) where defendant was resentenced to 50-years-to-life sentence after § 3051 was enacted, distinguishing Heard and Sorto on the basis that “section 3051 did not exist when those defendants were sentenced, which is the relevant inquiry under section 1170(d)(1)”].) Moreover, as the Sorto court explained, “[T]he Legislature amended section 1170(d) several times after Lopez was decided, but it has never clarified that an offender must currently be serving an LWOP term to be eligible for relief. [Citations.] Nor did the Legislature repeal section 1170(d) after it amended section 3051 to grant most juvenile LWOP offenders a meaningful possibility of parole during their lifetimes. [Citation.] Because we may presume the Legislature is aware of existing laws and judicial decisions when it enacts and amends statutes [citation], this history strongly suggests the Legislature agreed with Lopez. It also suggests the Legislature intended section 1170(d) to provide relief in addition to the relief provided under section 3051.” (Sorto, supra, 104 Cal.App.5th at p. 448; accord, People v. Cabrera, supra, 111 Cal.App.5th at p. 653 [“We agree with Heard’s holding that section 3051 eligibility does not defeat a defendant’s section 1170(d)(1)(A) petition.”]; Bagsby, supra, 106 Cal.App.5th at pp. 1063 [by leaving § 1170(d)(1) in place after enacting § 3051, “the Legislature has signaled its 16 preference for [§ 1170(d)(1)] to persist rather than to be stricken,” thereby ensuring § 1170(d)(1) provides relief in addition to the relief provided by § 3051].) Further, as the Sorto court pointed out, section 1170(d)(1) can still provide meaningful relief to a juvenile offender who is entitled to a youth offender parole hearing under section 3051 because the superior court at resentencing has broad discretion to modify the sentence and apply the benefits of retroactive ameliorative changes to the law. (Sorto, supra, 104 Cal.App.5th at p. 449.) As discussed, this would include modifying the term of imprisonment, running sentences concurrently or consecutively, and striking or dismissing enhancements. (Ibid.) In addition, under Proposition 57, a juvenile offender’s case could be sent to juvenile court for resentencing. (Sorto, supra, 104 Cal.App.5th at p. 449; see Bagsby, supra, 106 Cal.App.5th at pp. 1046, 1050-1051 [affirming order granting § 1170(d)(1) petition and releasing defendant who had committed offenses when he was 15 years old, because defendant fell outside jurisdiction of the juvenile court, preventing transfer to juvenile court]; People v. Montes (2021) 70 Cal.App.5th 35, 48-49 (Montes) [ordering superior court to transfer case to juvenile court to hold hearing under Prop. 57 where court had recalled LWOP sentence under § 1170(d)(1) for a defendant who had committed crimes when he was 17 years old].) Section 3051, by contrast, does not authorize a trial court to modify the initial sentence. (See § 3051, subd. (b)(3), (4); Franklin, supra, 63 Cal.4th at pp. 277-278 [§ 3051 does not “vacate” defendant’s initial sentence, and “an inmate remains bound by that sentence”; section 3051 instead addresses the constitutional concerns raised in Miller by “capping 17 the number of years that he or she may be imprisoned before becoming eligible for release on parole.”].) We recognize that several courts have rejected the reasoning in Heard and Sorto. (See People v. Garner 121 Cal.App.5th 779, 790 [“Because section 3051 provides the opportunity for a parole hearing to obtain release based on his demonstrated maturity and rehabilitation during the 15th year of incarceration, defendant’s sentence is not the functional equivalent of LWOP.”]; People v. Isayev (2025) 113 Cal.App.5th 1117, 1123, review granted Nov. 12, 2025, S292860 [“Because defendant is statutorily eligible for a youth offender parole hearing at the age of 42, we find his sentence is not the functional equivalent of an LWOP term.”]; People v. Ortega (2025) 111 Cal.App.5th 1252, 1255 (Ortega), review granted Sept. 7, 2025, S292070 [as a result of § 3051 and related amendments, Ortega “is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration,” which is not the functional equivalent of LWOP].) The Court of Appeal in People v. Isayev, supra, 113 Cal.App.5th at page 1128, review granted, reasoned that “contrary to Heard, . . . eligibility for resentencing relief under section 1170, subdivision (d), turns on the sentence in effect at the time of the petition, not whatever sentence originally was imposed. Thus, parole eligibility under section 3051 may render a juvenile offender ineligible for relief under section 1170, subdivision (d), because the offender is no longer serving LWOP or its functional equivalent.” The Isayev court relied on the Supreme Court’s holding in Franklin, supra, 63 Cal.4th at page 268 that section 3051 mooted the defendant’s Miller claim because “the new law ‘superseded’ the defendant’s sentence so 18 that, notwithstanding his original term of 50 years to life, the defendant was eligible for a parole hearing during his 25th year of incarceration.” (Isayev, at p. 1133, quoting Franklin, at pp. 277, 279-280; accord, Ortega, supra, 111 Cal.App.5th at p. 1265, review granted [concluding based on Franklin that defendant’s “equal protection claim is moot because . . . he was 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)”].) We find the reasoning in Heard, Sorto, and Bagsby more persuasive. As discussed, the central question in Franklin in considering a juvenile’s Eighth Amendment challenge to his 50- years-to-life sentence was whether he was serving a sentence that would provide him a meaningful opportunity to be released during his lifetime, satisfying the constitutional concerns raised in Miller, supra, 567 U.S. 460. (Franklin, supra, 63 Cal.4th at pp. 279-280.) Because the defendant would have an opportunity to be released in the 25th year of his sentence as a result of newly enacted section 3051, his sentence was not the functional equivalent of LWOP, and his “challenge to his original sentence under Miller” was now moot. (Id. at p. 280.) Unlike the Eighth Amendment challenge at issue in Franklin, the Courts of Appeal in Heard, Sorto, and Bagsby considered whether section 1170(d)(1) violated equal protection principles by providing juvenile offenders who were “sentenced to [LWOP]” an opportunity to have their sentences recalled while denying relief to juveniles serving functionally equivalent term- of-years sentences beyond their life expectancy. As the Sorto court explained, although both sets of defendants would be eligible for youth offender parole after 25 years, only defendants 19 sentenced to explicit LWOP terms would be eligible for significant resentencing relief (after only 15 years), including the benefit of retroactive ameliorative changes in the law and potential transfer to juvenile court for resentencing under juvenile law. (Sorto, supra, 104 Cal.App.5th at p. 449.)7 The Supreme Court recently observed in People v. Padilla (2022) 13 Cal.5th 152, 158 (Padilla) that “[a]djudicating . . . offenses in juvenile court typically results in less severe punishment for the juvenile offender.” By contrast, juvenile offenders serving functionally equivalent sentences would continue to be bound by their initial sentence. (Franklin, supra, 63 Cal.4th at pp. 277- 278.) In addition, as discussed, if the Legislature believed section 3051 was sufficient to address lengthy juvenile sentences, it could have repealed section 1170(d)(1) or amended the eligibility requirement that the petitioner “was sentenced to [LWOP]” following the 2016 decision in Lopez, supra, 4 Cal.App.5th 649 and subsequent Heard and Sorto decisions. (See Sorto, supra, 104 Cal.App.5th at p. 448.)

7 Division Three of this district in People v. Thompson, supra, 112 Cal.App.5th at page 1069 and footnote 3 recently reaffirmed its prior holding in Sorto rejecting the reasoning in Ortega, supra, 111 Cal.App.5th at pages 1264 to 1265, review granted, that a juvenile offender’s lengthy sentence was not the functional equivalent of LWOP because the sentence “had been reformed by section 3051” under Franklin. The Thompson court explained: “[T]his court previously considered the same issue in Sorto, [supra, 104 Cal.App.5th at page 447], and we agreed with the Heard court’s reasoning.” (Thompson, at p. 1069, fn. 3.)

20 D. Remand Is Appropriate for the Superior Court To Determine Whether To Recall Pennix’s Sentence, and If So, To Transfer the Case to Juvenile Court Pennix contends we should reverse the superior court’s order denying his petition, and because he meets the substantive requirements for recall and resentencing, we should order the superior court to transfer his case to the juvenile court pursuant to Welfare & Institutions Code section 707, subdivision (a). We agree the superior court’s order should be reversed because the superior court erred in finding his equal protection challenge moot. However, we remand for the court to make a determination in the first instance whether one or more of the qualifying circumstances specified in section 1170, subdivision (d)(2)(A) to (D), is true. (See § 1170, subd. (d)(5) [“If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing to resentence the defendant in the same manner as if the defendant had not previously been sentenced.”].) If the court makes this determination and recalls Pennix’s sentence, then the court must transfer the matter to the juvenile court for a hearing to determine whether a criminal or juvenile adjudication is appropriate. “Proposition 57, passed in the November 2016 general election . . . , requires prosecutors to commence all cases involving a minor in juvenile court.” (O.G. v. Superior Court of Ventura County (2021) 11 Cal.5th 82, 87; accord, People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305-306 (Lara). Under Proposition 57, “[c]ertain categories of minors . . . can still be 21 tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor’s maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated.” (Lara, at p. 305; accord, Padilla, supra, 13 Cal.5th at p. 159.) “For minors 16 or older, prosecutors can seek transfer to criminal court for any felony offense,” whereas “[f]or 14 and 15 year olds, prosecutors could seek transfer to criminal court only for specified serious or violent offenses.” (O.G., at pp. 88-89.) The Supreme Court in Lara concluded Proposition 57 constituted an ameliorative change to the criminal law, and therefore, it applies “retroactively to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (Lara, supra, 4 Cal.5th at pp. 304, 309.) In Padilla, supra, 13 Cal.5th at pages 161 to 162, the Supreme Court extended the holding in Lara and held that once a superior court recalls a sentence, it becomes nonfinal, and Proposition 57 applies retroactively. (See Padilla, at pp. 161-162 [defendant’s sentence became nonfinal after initial LWOP sentence was vacated in habeas corpus proceeding and the superior court resentenced him]; Bagsby, supra, 106 Cal.App.5th at pp. 1064- 1065 [“[b]ecause the defendant’s judgment became nonfinal after his sentence was vacated, ‘Proposition 57 applies to his resentencing’”]; People v. Ramirez (2021) 71 Cal.App.5th 971, 996 [because sentence was vacated under former section 1170.95, defendant’s sentence became nonfinal for purposes of Proposition 57]; Montes, supra, 70 Cal.App.5th at p. 48 [“because we conclude defendant’s resentencing pursuant to section [1170(d)(1)], effectively vacated the earlier judgment, it follows that Proposition 57 applies retroactively to defendant’s 22 nonfinal sentence and requires that he receive a transfer/fitness hearing”].) Therefore, if the superior court recalls Pennix’s sentence, it must grant Pennix’s motion to transfer the case to the juvenile court for a retroactive transfer hearing to determine whether, if the case had initially been filed in the juvenile court in accordance with current law, Pennix would have been fit for treatment under juvenile law and, if so, for the juvenile court to treat his conviction as a juvenile adjudication and to impose an appropriate disposition. (Padilla, supra, 13 Cal.5th at pp. 169- 170 [because the defendant’s sentence became nonfinal, he “must receive a transfer hearing in a juvenile court, where the court will decide whether criminal adjudication is appropriate” for the crimes he committed when he was 17 years old]; Montes, supra, 70 Cal.App.5th at p. 49 [remanding to superior court with directions to “refer the case . . . to the juvenile court for a transfer/fitness hearing, to determine if it would have transferred the case to adult criminal court had it originally been filed in the juvenile court in accordance with current law”].)

DISPOSITION

The superior court’s August 26, 2025 order denying Pennix’s petition for recall and resentencing is reversed. We remand for the superior court to determine under section 1170, subdivision (d)(5), whether by a preponderance of the evidence one of the qualifying circumstances specified in section 1170, subdivision (d)(2)(A) through (D), is true. If the court determines that one of the qualifying circumstances is true, the court shall recall Pennix’s sentence.

23 We also conditionally reverse the superior court’s order denying Pennix’s motion to transfer the case to the juvenile court. If the court recalls the sentence, it shall also grant Pennix’s motion to transfer the case to juvenile court for a retroactive transfer hearing to determine whether the juvenile court should treat his conviction as a juvenile adjudication and impose an appropriate disposition. If the court again denies Pennix’s section 1170(d)(1) motion for recall and resentencing, the court shall deny the motion to transfer.

FEUER, J. We concur:

MARTINEZ, P. J.

SEGAL, J.