People v. Jordan CA1/4

Opinion

Filed 9/28/26 P. v. Jordan CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A173323 v. MAURICE DON JORDAN, JR., (Solano County Super. Ct. No. VCR194365) Defendant and Appellant.

Maurice Don Jordan, Jr. was sentenced to 41 years to life in prison in 2009 following his conviction for second degree murder and unlawful possession of a firearm. (People v. Jordan (May 17, 2011, A126859) [nonpub. opn.] (Jordan I).) He filed a motion to dismiss certain enhancements to his sentence under Penal Code section 1172.75, which retroactively invalidated certain sentence enhancements for defendants like Jordan, and for resentencing under section 1172.1.1 The trial court dismissed the enhancements and reduced Jordan’s sentence to 15 years to life in prison. Jordan now appeals, arguing the trial court’s stated reasons for not reducing his sentence further were an abuse of discretion. He also argues the abstract of judgment should be corrected by deleting a reference to a restitution fine 1 Undesignated statutory citations are to the Penal Code.

1 imposed at his original sentencing and updating his credit for actual time served. The People concede error on the last two points. We agree with Jordan that some of the trial court’s reasons for rejecting further relief were improper and agree with both parties that the abstract of judgment must be modified as Jordan requests. We will therefore reverse and remand for further proceedings. BACKGROUND “After a jury trial, defendant was convicted of one count of second degree murder and one count of being a felon in possession of a firearm, based on an incident involving himself, his brother Marco Glaude, and victim Roderick Anderson. [Citation.] Defendant and Anderson engaged in a physical fight after Anderson or one of Anderson’s friends made what defendant considered to be a disrespectful comment about defendant’s girlfriend. [Citation.] Although the eyewitness testimony was conflicting as to whether defendant or Glaude fired the shots that killed Anderson, the prosecution’s theory at trial was that Glaude shot Anderson after defendant ordered Glaude to get defendant’s gun and kill Anderson, thus making defendant liable as an aider and abettor.” (People v. Jordan (Feb. 13, 2020, A158832) [nonpub. opn.] (Jordan II).) After the jury trial, the trial court found true the allegations that Jordan had three prior convictions within the meaning of section 667.5, subdivision (b) and one prior strike conviction within the meaning of section 667, subdivision (a)(1).

2 The trial court further found that one of Jordan’s convictions was a strike pursuant to section 1170.12. The trial court sentenced Jordan to the middle term of two years on the unlawful possession of a firearm count, doubled to four years because of one of his prior convictions. He received one-year enhancements for two of his other convictions under section 667.5, which the trial court ran consecutively for a total of six years. The trial court imposed 15 years to life for the murder count, again doubled because of his strike. The trial court added a consecutive five-year enhancement under section 667, subdivision (a). The end result was a determinate term of six years in prison, with a consecutive 30 years to life plus five years. (Jordan I, supra, A126859.) The trial court also imposed a $10,000 restitution fine under section 1202.4, subdivision (b). In January 2019, Jordan filed a petition for resentencing under what is now section 1172.6. (See Stats. 2022, ch. 58, § 10 [amending and renumbering former § 1170.95 as § 1172.6].) He claimed “that he was prosecuted ‘under a theory of felony murder or murder under the natural and probable consequences doctrine,’ and that he could no longer be ‘convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.’ ” (Jordan II, supra, A158832.) This court affirmed the denial of his petition because Jordan was prosecuted as an aider and abettor, not under the felony murder rule or natural and probable consequences doctrine. (Ibid.)

3 In December 2024, while proceedings to dismiss Jordan’s two one-year enhancements under section 1172.75, subdivision (a) were already underway, Jordan filed a motion through counsel asking the court to dismiss the enhancements and also to exercise its discretion to recall and resentence him under section 1172.1. In support of the latter argument, Jordan provided evidence that the jury trial for Glaude began shortly after Jordan’s trial concluded. Glaude accepted an offer from the prosecutor during his trial and pleaded guilty to voluntary manslaughter. Glaude was sentenced to seven years in prison. A defense investigator sent Jordan’s appellate attorney a letter in February 2011. He related that the prosecutor in Glaude’s case had said she made the plea offer to Glaude when she learned that fragments removed from Anderson suggested that Anderson had been shot by friendly fire in addition to being shot by Glaude. The investigator said the prosecutor inferred that Glaude had a self-defense claim and that Dr. Thomas Gill, who performed the autopsy on the victim Anderson, had botched the cause of death or at least gotten things wrong. The investigator also said in his letter that Dr. Gill was well known as a very incompetent pathologist. The investigator reaffirmed the contents of the letter in a December 2024 declaration. The district attorney’s office sent Jordan’s trial counsel a letter in August 2011. The district attorney’s office said that it was complying with its obligation under Brady v. Maryland by notifying Jordan’s counsel that Dr. Gill was the subject of multiple media reports and providing a disc containing discovery 4 about Dr. Gill. The district attorney’s office also said it had Dr. Gill’s employment records and would not oppose a motion seeking a court order for their release. Jordan argued in his section 1172.1 motion that this evidence showed that the prosecution had violated his constitutional rights to discovery and due process. He also pointed out the disparity between his sentence and Glaude’s. Jordan relied on this evidence, as well as prison disciplinary records, an impact and remorse letter he signed, and letters from supporters, to ask the court to vacate his murder conviction and impose judgment on the lesser included offense of manslaughter, in addition to dismissing his sentence enhancements as section 1172.75 required. He also asked the court to make other adjustments to his sentence to yield a 17-year determinate term. The People did not file a written opposition. After several continuances, the trial court held a hearing on Jordan’s motion in May 2025 with Jordan appearing by video pursuant to the court’s order. The trial court heard argument from both sides, as well as a statement from Jordan personally. The trial court began its announcement of its decision by saying that as to Jordan’s request to revisit the murder conviction, “I don’t think that it’s my place in the universe to revisit what the jury did, which has been run up the [a]ppellate flagpole a couple times in terms of the finding of responsibility for the murder. I don’t think that for a number of reasons that have already been argued, I should be revisiting and modifying that finding.” But the trial court found it “pretty clear” that “a 5 number of things happened” after Jordan’s trial, which created considerable doubt for the court about how Jordan’s case would have been resolved had the information been known. The trial court said it would not modify the murder conviction. But it dismissed the section 667.5, subdivision (b) enhancements, struck Jordan’s prior conviction under Romero2, and made other changes so that his sentence was reduced to an indeterminate term of 15 years to life in prison and he could be considered for parole. Jordan said he appreciated the trial court’s action but reiterated that his constitutional right to due process had been undermined. His counsel fleshed out Jordan’s concerns by summarizing the evidence concerning Dr. Gill and the possibility that Anderson was struck by friendly fire. The trial court said it understood Jordan’s concerns and it was a factor in its analysis. But the trial court said it respected and would defer to the justice system’s findings about the way Jordan’s case had been handled. It reiterated that it had struck Jordan’s strike, over the People’s objection, to “find some equitable middle place for all of this,” but it deferred to the judicial process “in that other regard” because it had been litigated twice. DISCUSSION I. Resentencing Under Section 1172.1 “Section 1172.1 ‘is a statutory exception to the general rule that “ ‘once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence.’ ” ’ ” (People v. Craig (2026) 117 Cal.App.5th 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

6 1165, 1170 (Craig).) “[A]s amended effective January 1, 2024, section 1172.1, subdivision (a), authorizes the court to recall a sentence and resentence the defendant on its own motion ‘at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.’ ” (Ibid.) “Section 1172.1 does not authorize the defendant to initiate the recall and resentencing process. The statute states: ‘A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.’ (§ 1172.1, subd. (c).)” (Craig, at p. 1171.) Section 1172.1, subdivision (a)(2) instructs a trial court, when recalling and resentencing a defendant, to “apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” Trial courts may modify a defendant’s sentence to reduce the term of imprisonment. (Id., subd. (a)(3)(A).) They may also vacate a “defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, with the concurrence of the defendant, and then resentence the defendant to a reduced term of imprisonment.” (Id., subd. (a)(3)(B).) The statute lists various postconviction factors trial courts must consider when recalling and resentencing a defendant. (Id., subd. (a)(5).) Those factors 7 include “the disciplinary record and record of rehabilitation of the defendant while incarcerated” and “evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.” (Ibid.) A trial court “shall state on the record the reasons for its decision to grant or deny recall and resentencing.” (Id., subd. (a)(7).) “We review the superior court’s decision whether to recall a defendant’s sentence for abuse of discretion.” (Craig, supra, 117 Cal.App.5th at p. 1175.) “To establish an abuse of discretion, a defendant must establish the court ‘act[ed] while unaware of the scope of its discretion’ [citation], ‘considered impermissible factors’ [citation], or made a choice ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” (People v. Olea (2025) 115 Cal.App.5th 889, 902–903.) A. Appealability Before considering Jordan’s argument that the trial court’s stated reasons for not addressing his constitutional argument were improper, we must first consider the People’s contention that the trial court’s order is not appealable. “ ‘The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is 8 expressly made appealable by statute.’ ” (Craig, supra, 117 Cal.App.5th 1165, 1171.) Section 1237, subdivision (b) allows a defendant to appeal “[f]rom any order made after judgment, affecting the substantial rights of the party.” The People argue that because section 1172.1, subdivision (c) states that a defendant is not entitled to file a petition seeking relief under that statute and the trial court declined to exercise its discretion to recall Jordan’s sentence, the trial court’s order did not affect Jordan’s substantive rights and is not appealable. The People rely primarily on People v. Hodge (2024) 107 Cal.App.5th 985, 991, 996, 999, which followed this rationale in holding that a trial court’s order declining to exercise its discretion to recall a defendant’s sentence was not appealable. Although the People ignore them, two cases have held that when a trial court takes concrete steps to consider a defendant’s section 1172.1 petition instead of summarily denying it or refusing to act on it (as in People v. Hodge and similar cases), the resulting denial is appealable. (Craig, supra, 117 Cal.App.5th at pp. 1171–1175; People v. Olea, supra, 115 Cal.App.5th at pp. 901– 902.) Thus, Craig, at page 1173, held a trial court’s order denying a request for resentencing under section 1172.1 was appealable after the trial court reviewed moving and opposition papers; looked at documents and case history, including letters of support, evidence of rehabilitation, and prison disciplinary records; heard argument from counsel at a hearing at which the defendant appeared remotely; and addressed the merits of the petition instead of denying it as unauthorized. People v. Olea, at 9 page 901, held that a denial was appealable after the trial court followed similar steps, including appointing counsel for the defendant, ordering the release of subpoenaed records concerning the defendant’s behavior and activities in prison, and setting a contested hearing at which the defendant appeared remotely, the court heard argument, indicated it reviewed the record, and stated it believed the original sentence was just. We agree with the rationale of these decisions. The record here is somewhat muddied by the fact that Jordan added his section 1172.1 request to an existing proceeding under section 1172.75. But the trial court nonetheless invited the People to submit a response to Jordan’s motion raising section 1172.1, set a hearing, ordered the Department of Corrections and Rehabilitation to have Jordan appear remotely, and denied the relief Jordan requested under section 1172.1. The trial court did not sever the two portions of Jordan’s motion, state that the section 1172.1 request was unauthorized, or summarily deny Jordan’s request for relief under section 1172.1. This is thus not a case like People v. Hodge, supra, 107 Cal.App.5th at pages 991, 999, where the trial court refused to consider a defendant’s request at all. The People argue that the trial court here simply declined to exercise its discretion like the superior court in People v. Hodge, citing the trial court’s remarks that it “should [not] be revisiting and modifying” Jordan’s responsibility for murder. But the trial court specifically commented on the “number of things” that happened after Jordan’s trial, arose in Glaude’s case, and 10 could have caused Jordan’s case to come out differently if they had been known. We construe this as a reference to the postconviction evidence concerning the reputation of the pathologist on Jordan’s case and additional fragments in the victim suggesting he was struck by friendly fire, which Jordan discussed solely in relation to section 1172.1. The trial court then modified Jordan’s sentence in significant ways, reducing it from 41 years to life in prison to 15 years to life in prison, while rejecting his request to impose judgment on manslaughter instead of murder. The trial court also said that Jordan’s constitutional argument was “a factor that went into the analysis.” These remarks express the trial court’s reasons for denying Jordan’s request for recall and resentencing, just as section 1172.1, subdivision (a)(7) requires. They indicate the trial court’s modification of Jordan’s sentence was, at least in part, in response to address his request under section 1172.1, not a refusal to exercise its discretion on that request at all. The trial court’s denial of the requested relief therefore affected Jordan’s substantive rights and is appealable. (Craig, supra, 117 Cal.App.5th at p. 1175; People v. Olea, supra, 115 Cal.App.5th at p. 902.) B. Merits Jordan contends that the reasons the trial court gave for denying further relief under section 1172.1 were improper. We agree. While not conclusive, Jordan’s postconviction evidence about the additional findings in the autopsy suggesting the 11 victim was shot by more than one person and the questions about Dr. Gill’s competence is sufficient to raise a legitimate question about whether the prosecution complied with its constitutional duties to disclose favorable evidence to Jordan at the time of his trial. The trial court’s reasons for rejecting this evidence were impermissible. The trial said it was not its place to revisit the jury’s determination, even though section 1172.1 empowers the trial court to do just that. (§ 1172.1, subd. (a)(3)(B) [when resentencing, trial court may “[v]acate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense”].) When Jordan and his counsel raised again the argument that the prosecution had violated his constitutional rights, the trial court cited the fact that Jordan’s case had been dealt with by the appellate courts several times, apparently referring to Jordan I’s decision in Jordan’s direct appeal and Jordan II’s decision in the appeal from the denial of Jordan’s motion for resentencing under section 1172.6. But the letters Jordan primarily relied on were written in February and August 2011. This evidence could not have been available to Jordan at the time of his original trial in 2009. Not surprisingly, our opinion in his direct appeal did not mention such issues or evidence. (See Jordan I, supra, A126859.) Nor did we consider this evidence in Jordan’s appeal from the denial of his motion under section 1172.6. (See Jordan II, supra, A158832.) Our decision in that case turned only on the question of whether Jordan was convicted of felony murder or murder under the 12 natural and probable consequences doctrine. (Ibid.) Jordan’s prior appeals therefore offer no logical or rational reason to reject his request for relief based on the alleged violation of his constitutional rights. Although the trial court’s statements in response to Jordan’s claims of constitutional violations suggest a misunderstanding of section 1172.1, the trial court’s remarks earlier in the hearing suggest it did nonetheless take that evidence into account. As noted ante, before announcing Jordan’s dramatically reduced sentence, the trial court referred to a “number of things” that happened after Jordan’s case went to trial that created considerable doubt for the court about whether Jordan’s case might have been resolved differently if those things had been known at that time. The court also said Jordan’s constitutional claim was a factor in its analysis. These remarks indicate the trial court already relied on Jordan’s constitutional claims when it reduced Jordan’s sentence from 41 years to 15 years to life in prison. “[W]hen ‘ “a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” ’ ” (People v. Mendoza (2022) 74 Cal.App.5th 843, 856.) There is such a reasonable probability here, since the trial court seemed to feel constrained by the verdict and prior appeals, and never appeared to grapple with the gravity of the constitutional violations Jordan alleged, simply 13 referring to them as “a number of things [that] happened.” We therefore agree with Jordan that a remand is warranted so that the trial court can exercise its discretion again. The trial court should explain its rationale regarding Jordan’s claims of violations of his constitutional rights and whether or not those claims justify a further reduction in Jordan’s sentence. We note that our decision to remand the case should not be interpreted to suggest any views about whether the trial court should or should not further modify Jordan’s sentence. We express no opinion on that question and leave it to the trial court’s proper exercise of its discretion. II. Restitution Fine At Jordan’s original sentencing in 2009, the trial court imposed the maximum restitution fine of $10,000 under section 1202.4, subdivision (b). Section 1465.9, subdivision (d) states, “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.” The trial court did not mention a restitution fine when it resentenced Jordan in 2025, but the abstract of judgment still shows a $10,000 fine. Jordan contends this restitution fine must be stricken from the abstract, both because the fine imposed at the original sentencing is now more than 10 years old and the trial court did not orally impose a fine at the resentencing. The People agree with the first rationale, as do we. Even if the trial court had 14 reimposed a restitution fine, as section 1202.4 directed it to do, such a fine would have been improper. (People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted on another issue and further action deferred Mar. 11, 2026, S289903.) Allowing the trial court to reimpose a restitution fine would penalize Jordan for seeking resentencing and defeat the purpose of section 1465.9, subdivision (d). (Salstrom, at p. 601.) On remand, the abstract of judgment should be corrected to delete the reference to the $10,000 restitution fine under section 1202.4, subdivision (b). III. Custody Credits Jordan finally argues that the abstract of judgment must be corrected to properly reflect the amount of credit for actual time served to which he is entitled. He points out that the trial court did not recalculate his time served and the abstract of judgment still reflects the same number of days served as when he was originally sentenced in 2009. Like the People, we agree that the trial court should have recalculated Jordan’s actual time served when it resentenced him. (People v. Buckhalter (2001) 26 Cal.4th 20, 29 [when resentencing a defendant, trial court must update the calculation of actual time served, whether before or after sentencing and in jail or prison]; People v. Dean (2024) 99 Cal.App.5th 391, 397 [Department of Corrections and Rehabilitation, not trial court, is responsible for calculating post- sentence credits other than actual time served].) On remand, the trial court should recalculate his actual time served and instruct 15 the Department of Corrections and Rehabilitation to calculate any additional credits to which Jordan may be entitled. DISPOSITION The trial court’s order is reversed. The matter is remanded for further proceedings not inconsistent with this opinion.

BROWN, P. J.

WE CONCUR:

STREETER, J. GOLDMAN, J.

People v. Jordan (A173323)