People v. Ramazzini CA3

Filed 10/5/21 P. v. Ramazzini CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Colusa)
----

THE PEOPLE, C088503

Plaintiff and Respondent, (Super. Ct. No. CR35134)

v.

NATHAN JOSHUA RAMAZZINI,

Defendant and Appellant.

In 1998, defendant Nathan Joshua Ramazzini was sentenced to a term of life
without the possibility of parole (LWOP) for a murder he committed as a juvenile. In
2017, defendant filed a petition for recall and resentencing pursuant to Penal Code1
section 1170, subdivision (d)(2) (hereafter section 1170(d)(2) [subsequent subdivision
references are to this statute]). After a hearing, the trial court resentenced defendant to an
LWOP term. On appeal, defendant claims (1) his LWOP sentence is contrary to
principles articulated in Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407]

1 Undesignated statutory references are to the Penal Code.

1
(Miller), which outlined a range of factors a sentencing court should consider before
ordering a juvenile to serve an LWOP term, consistent with the Eighth Amendment’s ban
on cruel and unusual punishment; and (2) the trial court abused its discretion under
section 1170(d)(2). subsequent In a supplemental brief, he contends his sentence should
be conditionally vacated and the matter remanded to the juvenile court for a fitness
hearing under Proposition 57.
The Miller claim is moot, the trial court did not abuse its discretion under section
1170(d)(2). Finding Proposition 57 applies because his conviction was no longer final at
the section 1170 proceeding, we shall conditionally vacate the conviction and remand
with directions to transfer the matter to juvenile court for additional proceedings.
BACKGROUND
A. The Murder
The facts of the murder are taken from our nonpublished opinion, People v.
Ramazzini (Nov. 22, 1999, C030293), affirming the criminal judgment in defendant’s
original appeal.
On July 16, 1997, the parents of Erik Ingebretsen (a 16-year-old male who lived in
Colusa, California) reported him missing.
Defendant, also 16 years old at the time, told law enforcement that he and
Ingebretsen were best friends. He claimed the last time he saw Ingebretsen was around
11:00 a.m. on the 15th at defendant’s house.
Law enforcement went to defendant’s house around 7:30 p.m. on July 16.
Defendant’s father showed officers his Lincoln Continental, the car his son borrowed the
night before. There were bloodstains on the front passenger armrest, seat, and floor.
Later, officers found blood on the outside of the car as well. Defendant’s father said he
did not know how the blood got on the car.

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 Defendant was interviewed again after his father’s car had been searched. He
speculated that the blood might have gotten on the car earlier in the year when he had too
much to drink and threw up in the car.
Ingebretsen’s body was discovered about 3:00 p.m. on July 17 in a wooded area
near the river. Ingebretsen had suffered 17 different wounds, including blunt force
trauma to the head, stab wounds, and a slashing wound to the throat that was so deep it
severed a portion of the spine. Several of the wounds could have independently caused
death.
After the body was found, law enforcement interviewed defendant again.
Ultimately, when defendant learned that his confederate in the murder, Leo Contreras,
admitted to the killing and implicated him as well, defendant confessed to some
involvement in the murder.
Defendant said he borrowed his father’s Lincoln Continental around 8:30 p.m. on
July 15. Accompanied by Contreras, defendant drove the Lincoln to Ingebretsen’s
workplace around 9:00 p.m., when Ingebretsen was scheduled to complete his shift.
They called out, “Hey, Erik, come here. Hop in with us.” Ingebretsen hopped in the
Lincoln, having no reason to be suspicious, as defendant and Contreras were his best
friends. Defendant drove to a spot near the river, telling the victim they wanted to show
him something.
The three got out of the car and walked about 10 to 15 feet. Contreras hit
Ingebretsen in the back of the head with a baseball bat. Ingebretsen fell to the ground
unconscious. When he began to move, defendant hit Ingebretsen in the back of the head
because Contreras told him to. Defendant stated Contreras then hit Ingebretsen five or
six more times. Defendant stated Contreras cut Ingebretsen’s neck and stabbed him three
or four times.
Defendant told the officers that Ingebretsen owed Contreras money. He assumed
it was drug related. After the interview, defendant showed the officers where he and

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Contreras had been the night of the murder. He showed them where the murder took
place and pointed out a bush where he threw his shoes after the murder. Defendant’s
bloody shoes were recovered from the location he indicated. Defendant showed the
officers the hose he used to wash the blood off of Contreras, the bat, and the knife. He
took them to a dumpster where the officers recovered a knife and two bloodied shirts.
B. Conviction, Sentencing, and Appeal
A jury found defendant guilty of first degree murder (§ 187, subd. (a)) and found
he intentionally killed the victim while lying in wait and personally used a deadly weapon
(§ 190.2, subd. (a)(15)). The trial court sentenced defendant to an LWOP term.
Defendant appealed, and we affirmed the judgment in 1999.
C. Juvenile Sentencing Law
The Supreme Courts of the United States and California have issued a series of
decisions limiting the types of sentences that may be imposed on juvenile offenders. (See
Roper v. Simmons (2005) 543 U.S. 551, 575 [161 L.Ed.2d 1, 25] [juveniles not eligible
for death penalty]; Graham v. Florida (2010) 560 U.S. 48, 82 [176 L.Ed.2d 825, 850]
(Graham) [juvenile convicted of a nonhomicide offense may not be sentenced to LWOP];
People v. Caballero (2012) 55 Cal.4th 262, 268-269 [extending Graham to juveniles who
receive sentences that are the functional equivalent of LWOP].)
In Miller, the United States Supreme Court held that a mandatory LWOP sentence
for juvenile offenders violates the Eighth Amendment’s prohibition against cruel and
unusual punishment. (Miller, supra, 567 U.S. at pp. 465, 479.) Although Miller did not
foreclose an LWOP term for juveniles, it noted the “appropriate occasions for sentencing
juveniles to this harshest possible penalty will be uncommon.” (Id. at p. 479.) To that
end, Miller outlined a range of factors a sentencing court should consider before
imposing LWOP on a juvenile offender. (Id. at pp. 477-479; People v. Gutierrez (2014)
58 Cal.4th 1354, 1388-1389 [listing five factors required by Miller]; In re Kirchner
(2017) 2 Cal.5th 1040, 1048 (Kirchner) [same].) In Montgomery v. Louisiana (2016)

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577 U.S. 190 [193 L.Ed.2d 599] (Montgomery) the Supreme Court held Miller operates
retroactively because it announced a substantive rule of constitutional law.
(Montgomery, at pp. ___, ___ [193 L.Ed.2d at pp. 618-620, 622].)
In response to Miller, Graham, and Caballero, our Legislature enacted Senate Bill
No. 260 (2013-2014 Reg. Sess.) (Senate Bill 260), which became effective January 1,
2014. Senate Bill 260 provided an offender who was under the age of 18 at the time of
his crime with a “youth offender parole hearing” during the 15th, 20th, or 25th year of
incarceration, depending on the “controlling offense.” (§ 3051, subds. (a) & (b).) At the
youth offender parole hearing, the Board of Parole Hearings is directed to “give great
weight to the diminished culpability of juveniles as compared to adults, the hallmark
features of youth, and any subsequent growth and increased maturity of the prisoner in
accordance with relevant case law.” (§ 4801, subd. (c).) Senate Bill 260 excluded
certain categories of offenders, including individuals who were sentenced to LWOP.
(Former § 3051, subd. (h).)
The California Supreme Court examined Senate Bill 260 in People v. Franklin
(2016) 63 Cal.4th 261 (Franklin). The defendant in Franklin was 16 years old when he
shot and killed another teenager. He was convicted of first degree murder with a firearm
enhancement and received a sentence of two consecutive 25-year-to-life terms. (Id. at
p. 268.) He challenged his 50-year-to-life sentence on the ground it was the functional
equivalent of LWOP, arguing that he should be afforded the protections outlined in
Miller. (Id. at p. 273.) The court agreed that “a juvenile may not be sentenced to the
functional equivalent of LWOP for a homicide offense without the protections outlined in
Miller.” (Id. at p. 276.)
Nonetheless, because Senate Bill 260 entitled the defendant to a parole hearing
during his 25th year in prison, his Miller challenge was deemed moot. (Franklin, supra,
63 Cal.4th at pp. 276-277.) The court reasoned that the operation of Senate Bill 260
“means that [the defendant] is now serving a life sentence that includes a meaningful

5
opportunity for release during his 25th year of incarceration. Such a sentence is neither
LWOP nor its functional equivalent. Because [the defendant] is not serving an LWOP
sentence or its functional equivalent, no Miller claim arises here.” (Id. at pp. 279-280.)
On October 11, 2017, Senate Bill No. 394 (2017-2018 Reg. Sess.) (Senate
Bill 394) became law. Senate Bill 394 expands the youth offender parole hearing process
under Senate Bill 260 to juvenile offenders sentenced to LWOP. (Stats. 2017, ch. 684,
§ 1.5.) To that end, Senate Bill 394 amends section 3051 to add subdivision (b)(4),
which provides: “A person who was convicted of a controlling offense that was
committed before the person had attained 18 years of age and for which the sentence is
life without the possibility of parole shall be eligible for release on parole by the board
during his or her 25th year of incarceration at a youth offender parole hearing, unless
previously released or entitled to an earlier parole consideration hearing pursuant to other
statutory provisions.”
People v. Lozano (2017) 16 Cal.App.5th 1286 (Lozano) examined the effect of
Senate Bill 394 on a juvenile offender’s Eighth Amendment challenge to an LWOP
sentence, concluding the Miller claim was moot. (Lozano, at p. 1288.) It was immaterial
that the defendant may have been eligible for parole at an earlier date if she had received
her requested sentence. (Id. at pp. 1291-1292.) California was free under Montgomery to
remedy any Miller violations by providing, through Senate Bill 394, an opportunity for
“meaningful parole consideration” without providing for individual resentencing.
(Lozano, at p. 1291.)
D. Section 1170(d)(2)
“Section 1170, subdivision (d)(2), enacted in 2012 (Stats. 2012, ch. 828, § 1),
provides a procedural mechanism for resentencing of defendants who were under the age
of 18 at the time of the commission of their offenses and who were given LWOP
sentences. If the defendant has served at least 15 years of the LWOP sentence, he or she
may ‘submit to the sentencing court a petition for recall and resentencing’ (§ 1170, subd.

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(d)(2)(A)(i)), so long as the LWOP sentence was not imposed for an offense in which the
defendant tortured the victim or an offense in which the victim was a public safety
official (id., subd. (d)(2)(A)(ii)).” (People v. Willover (2016) 248 Cal.App.4th 302, 310
(Willover).)
“[T]he measure that added subdivision (d)(2) to section 1170, was introduced in
the Legislature after Graham, but before Miller. Like Graham, supra, 560 U.S. 48,
Miller, supra, 567 U.S. 460, and Montgomery, supra, 577 U.S. ___ [136 S.Ct. 718],
section 1170(d)(2) was inspired by concerns regarding sentences of life without parole
for juvenile offenders. [Citation.]” (Kirchner, supra, 2 Cal.5th at p. 1049.)
“As enacted, section 1170(d)(2) 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 this petition, the defendant must describe
his or her remorse, relate his or her work toward rehabilitation, and state that a qualifying
circumstance is true. [Citation.] If the court finds by a preponderance of the evidence
that one or more of the qualifying circumstances in the petition are true, the court must
recall the defendant’s sentence and hold a hearing to resentence the defendant.
[Citation.]” (Kirchner, supra, 2 Cal.5th at pp. 1049-1050.)
“During this hearing, in deciding whether to resentence the defendant to a term of
imprisonment with the possibility of parole the court ‘may consider’ factors that ‘include,
but are not limited to, the following: [¶] (i) The defendant was convicted pursuant to
felony murder or aiding and abetting murder provisions of law. [¶] (ii) 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
defendant was sentenced to life without the possibility of parole. [¶] (iii) The defendant
committed the offense with at least one adult codefendant. [¶] (iv) Prior to the offense for
which the defendant was sentenced to life without the possibility of parole, the defendant
had insufficient adult support or supervision and had suffered from psychological or

7
physical trauma, or significant stress. [¶] (v) The defendant suffers from cognitive
limitations due to mental illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in the offense. [¶]
(vi) The defendant has performed acts that tend to indicate rehabilitation or the potential
for rehabilitation, including, but not limited to, availing himself or herself of
rehabilitative, educational, or vocational programs, if those programs have been available
at his or her classification level and facility, using self-study for self-improvement, or
showing evidence of remorse. [¶] (vii) The defendant has maintained family ties or
connections with others through letter writing, calls, or visits, or has eliminated contact
with individuals outside of prison who are currently involved with crime. [¶] (viii) The
defendant has had no disciplinary actions for violent activities in the last five years in
which the defendant was determined to be the aggressor.’ (§ 1170, subd. (d)(2)(F).)”
(Kirchner, supra, 2 Cal.5th at p. 1050.)
“In addition, the court may consider ‘any other criteria that the court deems
relevant to its decision, so long as the court identifies them on the record, provides a
statement of reasons for adopting them, and states why the defendant does or does not
satisfy the criteria.’ (Id., subd. (d)(2)(I).)” (Kirchner, supra, 2 Cal.5th at p. 1050.)
In Kirchner, our Supreme Court disagreed with the appellate court’s conclusion
that section 1170(d)(2) was an “adequate remedy for Miller error” (which conclusion by
the appellate court was the basis for a holding that defendant’s habeas corpus petition
seeking relief for Miller error therefore was precluded). (Kirchner, supra, 2 Cal.5th at
pp. 1043, 1052.)
The court explained: “Having originally been developed prior to the decision in
Miller, the section 1170(d)(2) process was not designed to provide a remedy for this type
of error, and it is not well suited to serve this purpose. Instead, the section 1170(d)(2)
recall and resentencing process anticipates the lawfulness of a sentence of life without

8
parole potentially subject to recall under its terms.” (Kirchner, supra, 2 Cal.5th at
p. 1052.)
The court further explained that, “[i]n contrast” to the Miller inquiry, wherein a
trial court “must give proper consideration to” five distinct factors,2 “section 1170(d)(2)
provides that when resentencing a defendant a court ‘may consider’ a set of enumerated
factors, which only partially overlap with those identified in Miller. (§ 1170, subd.
(d)(2)(F).) The court also ‘may consider any other criteria that the court deems relevant
to its decision’ (§ 1170, subd. (d)(2)(I)).” (Kirchner, supra, 2 Cal.5th at p. 1054.)
E. The Resentencing Petition, Hearing, and Ruling
In January 2017, defendant filed a petition for recall and resentencing pursuant to
section 1170(d)(2). The People opposed the petition.
In October 2018, after an evidentiary hearing, the trial court resentenced defendant
to LWOP, explaining that defendant’s conduct in July 1997 was “heinous and
despicable” and “anything but impulsive or reckless,” and that defendant “remain[ed]
calculating, deceitful and dangerous” despite the “vigorous window dressing” displayed
at the hearing.
Considering the enumerated factors that section 1170(d)(2)(F) explicitly
contemplates, the trial court ruled from the bench as follows:

2 (1) a juvenile offender’s chronological age and its hallmark features — among
them, immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the
family and home environment that surrounds the juvenile — and from which he cannot
usually extricate himself — no matter how brutal or dysfunctional; (3) the circumstances
of the homicide offense, including the extent of the juvenile defendant’s participation in
the conduct and the way familial and peer pressures may have affected him; (4) whether
the offender might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth — for example, his inability to deal with police
officers or prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys; and (5) the possibility of rehabilitation. (Kirchner, supra, 2 Cal.5th at
p. 1054.)

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 (i) The first factor (defendant was convicted pursuant to felony murder or aiding
and abetting murder provisions of law) was inapplicable.
(ii) Regarding the second factor (juvenile felony adjudications for crimes with a
significant potential for personal harm prior to the murder), the trial court found it “true
that [defendant] does not have such a record.” But the trial court explained that
defendant’s own testimony at the resentencing hearing “ma[de] clear that [defendant]
should have had such a record, but for the fact that he was not apprehended for the
apparently numerous acts of vandalism, arson, burglary, and other crimes” he committed
before murdering Ingebretsen.
(iii) The third factor (defendant committed the offense with at least one adult
codefendant) was true, as Contreras was 19 years old at the time of the murder. But the
trial court explained that it gave “little weight to this factor as one in the defendant’s
favor,” because, at the resentencing hearing, defendant “attempt[ed] to shift blame to”
Contreras “and minimize his own role by characterizing himself as a mere acolyte who
was under the sway of older boys whose approval he desperately needed,” despite the
admission “that he would have suffered little, if any, consequence” for refusing to
participate in the murder.
The trial court also cited (a) defendant’s “extensive planning of the crime and
coverup,” and (b) Contreras’s “small stature in retiring character” as additional
considerations regarding why it afforded little weight to this factor.
(iv) The trial court found the fourth factor (defendant had insufficient adult
support or supervision and had suffered from psychological or physical trauma, or
significant stress prior to the murder) did not apply, as there was “no convincing
evidence” for defendant’s claim that he had “a cold, unnurturing home life punctuated by
an undisclosed period of sexual abuse by an unnamed family friend.” The trial court
noted that prior to the resentencing hearing, defendant “had consistently denied any
sexual abuse, and . . . described his home life as idyllic.” Accordingly, the trial court

10
concluded that defendant’s “recent inventions” regarding this factor, were “designed to
bolster” defendant’s resentencing petition.
(v) The trial court did not address the fifth factor (that defendant suffers from
cognitive limitations due to mental illness, developmental disabilities, or other factors
that did not constitute a defense, but influenced the defendant’s involvement in the
offense).
(vi) The sixth factor is “[t]he 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.” (§ 1170(d)(2)(F)(vi).)
Acknowledging the “extensive testimony and considerable documentation . . .
presented to demonstrate” defendant’s rehabilitation, the trial court nevertheless
concluded this factor did not weigh in favor of a reduced sentence, because “defendant’s
prison record continued to show violence and defiance” up to and including a “2011
attack on his cellmate.”
The trial court further explained that a defense psychologist who testified “was
highly selective in the data points she chose to buttress her conclusions,” while “tend[ing]
to mitigate or excuse negatives in defendant’s prison record.”
And the trial court observed that defendant “admitted to lying to the retained
defense psychologist as recently as 2017” about “significant matters,”3 and that the

3 It appears the trial court was referring to defendant’s testimony on cross-
examination at the hearing that he lied in 2017 when he told the psychologist: (a) he had
not been physically, sexually or emotionally abused as a child, (b) he did not have a
motive for killing Ingebretsen, and (c) he did not plan to kill Ingebretsen when he and
Contreras invited Ingebretsen into defendant’s car.

11
expert’s conclusions regarding defendant’s amenability to rehabilitation were “in part,
based on testing . . . to detect deception.”
“[D]efendant remains calculating, deceitful and dangerous and . . . his potential for
actual rehabilitation as opposed to vigorous window dressing is dubious,” the trial court
concluded.
(vii) The trial court found the seventh factor (defendant has maintained family ties
or connections with others) applied in defendant’s favor.
(viii) The trial court found the eighth factor (defendant has had no disciplinary
actions for violent activities in the last five years in which the defendant was determined
to be the aggressor) applied in defendant’s favor, but “[w]hen measured against the
totality of defendant’s horrific calculated crime against his childhood best friend, the
deception in covering the crime, [an] incredibly violent first decade in prison, his
continued lying and deception . . . to bolster his petition for resentencing, the relative
peace of the last five years is of little significance.”
Before making its section 1170(d)(2)(F) findings, the trial court made two
threshold determinations: (1) whether to grant probation, and (2) whether — under
Miller — defendant was “that rare juvenile offender whose crime reflects irreparable
corruption.”
Explaining its decision not to grant probation, the trial court said it “doubted” the
“genuineness of th[e] remorse” that defendant expressed at the resentencing hearing.
“Even in his address to the victim’s family [defendant’s] words appeared rehearsed and
contrived with little more than the phraseology of someone well-versed in the jargon of
prison rehabilitation . . . .”
Explaining why defendant “remain[ed] subject to imposition of LWOP” because
of irreparable corruption, the trial court said, “few adults” would be “so self-possessed or
as coldly calculating” as defendant was when he “participated in . . . search efforts
launched to locate the victim and . . . pretended concern and extended false comfort to the

12
victim’s family all in an attempt to cover his tracks.” “There was nothing reckless,
impulsive or heedless in the defendant’s actions, and it does not appear that his young age
or lack of maturity presents any mitigation of his culpability,” the trial court found.
Defendant appealed the trial court’s ruling.
DISCUSSION
Defendant argues the trial court abused its discretion (1) in finding him subject to
an LWOP term due to irreparable corruption, and (2) under section 1170(d)(2).
Regarding the irreparable corruption finding, defendant contends the trial court
“completely ignor[ed] the extensive evidence of [defendant’s] rehabilitation after the
crime.” Regarding the section 1170(d)(2) analysis, defendant contends the trial court
“improperly analyzed” the section 1170(d)(2)(F) criteria.
The People argue as a threshold matter that defendant’s appeal is moot because he
“is not serving an LWOP term,” in light of section 3051, subdivision (b)(4). On the
merits, the People argue the trial court did not abuse its discretion when making an
irreparable corruption finding, and when considering the section 1170(d)(2)(F) factors.
We conclude defendant’s first argument is moot in light of Franklin, and
defendant’s second argument is unpersuasive.
A. The Constitutional Claim is Moot
In light of Franklin, defendant is no longer serving an LWOP sentence, disposing
of his Miller claim. (Franklin, supra, 63 Cal.4th at pp. 279-280.)
Senate Bill 394 amended section 3051 to expressly provide that a person in
defendant’s situation is entitled to a youth offender parole hearing after 25 years of
incarceration. (Stats. 2017, ch. 684, § 1.5; § 3051, subd. (b)(4).) This change applies
retrospectively to all eligible youth offenders regardless of the date of conviction. (See
Franklin, supra, 63 Cal.4th at p. 278.)
Thus, Senate Bill 394 effectively provides defendant the relief he sought at
resentencing, the least severe term for which he was eligible upon resentencing: 25 years

13
to life. (§ 190.5, subd. (b).) Thus, defendant’s Miller claim is moot. (See Lozano, supra,
16 Cal.App.5th at pp. 1288, 1290.)
B. The Statutory Claim is Unpersuasive
Kirchner teaches that the section 1170(d)(2) resentencing process “was not
designed to provide a remedy” for Miller error, and “is not well suited to serve this
purpose.” (Kirchner, supra, 2 Cal.5th at p. 1052.) Thus, though defendant’s claim of
Miller error is mooted, his statutory claim is not. But defendant’s statutory challenge is
moot to the extent that defendant imports a Miller analysis into his statutory challenge.
(See In re Cook (2019) 7 Cal.5th 439, 456 [“in Kirchner, both the express language and
legislative intent behind section 1170(d)(2) were so specific as to preclude an effective
Miller resentencing”]; People v. Gibson (2016) 2 Cal.App.5th 315, 331 [a § 1170(d)(2)
petition “is not a vehicle for reconsidering the constitutionality of a sentence” in light of
Miller].)
“A trial court abuses its sentencing discretion when its decision is arbitrary or
capricious, inconsistent with the letter and spirit of the law, or based on ‘circumstances
that are not relevant to the decision or that otherwise constitute an improper basis for
decision.’ [Citation.] When the sentencing decision involves an assessment of various
factors, the trial court has discretion to accord different weight to each factor, and its
decision need not be determined by the sheer number of factors on one side or the other.
Rather, the trial court’s exercise of its sentencing discretion ‘requires “[a] quantitative
and qualitative analysis” of multiple factors. [Citation.]’ [Citation.]” (Willover, supra,
248 Cal.App.4th at p. 323.)
Regarding subdivision (F)(ii) (juvenile felony adjudications for crimes with a
significant potential for personal harm prior to the murder), defendant suggests the trial
court erred when it indicated that defendant should have had a record of qualifying
juvenile felony adjudications, as it was “unknown whether” the acts that defendant

14
admitted — including setting fire to “a Hindu place of worship” — posed a significant
potential for personal harm to victims.
Given defendant’s admission at the resentencing hearing, the trial court’s
conclusion that — though defendant did not have juvenile felony adjudications — the
factor did not weigh in favor of a reduced sentence and was not an abuse of discretion, as
arson “is recognized as an inherently dangerous felony — i.e., one which inherently
poses a substantial risk, not just of injury but of death — as a matter of law” (People v.
Baker (2012) 204 Cal.App.4th 1234, 1247) and the trial court had discretion regarding
the weight it afforded to this factor when it conducted the section 1170(d)(2)(F) analysis
(Willover, supra, 248 Cal.App.4th at p. 323).
Regarding the factor set forth in subdivision (F)(iii) (defendant committed the
offense with at least one adult codefendant), defendant suggests the trial court erred by
giving “little weight” to this factor (due to defendant’s roles in planning the murder and
the attempted cover-up, and defendant’s admission he could have refused to participate in
the murder with little consequence) because “[t]here is a big difference between being 16
years old and being with an accomplice who is 19 years old.”
The trial court’s determination that this factor was true but of little weight in the
overall qualitative resentencing analysis was not an abuse of discretion, as the record
supports the trial court’s reasoning that defendant was not acting under the influence of
Contreras when he murdered Ingebretsen. (Willover, supra, 248 Cal.App.4th at p. 321
[no abuse of discretion in determining the factor set forth in subd. (F)(iii) did not weigh
in favor of a reduced sentence, as the record supported the trial court’s finding that
defendant was not acting under the influence of an adult and “the Legislature was
concerned about juveniles who were sentenced to LWOP for crimes they committed
while ‘ “acting under the influence of an adult” ’ ”].)
Regarding the factor set forth in subdivision (F)(vi) (defendant performed acts that
tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited

15
to, availing himself or herself of rehabilitative, educational, or vocational programs, if
those programs have been available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse), defendant argues the
trial court “unreasonably discounted” the evidence in favor of this factor, and
“dismiss[ed] all of [defendant’s] rehabilitative activities . . . as a sham.”
The trial court’s determination that despite “extensive testimony and considerable
documentation . . . presented to demonstrate” defendant’s rehabilitation, this factor did
not weigh in favor of a reduced sentence was not an abuse of discretion, because the trial
court’s determination rested on: (a) defendant’s apparent continued dishonesty, given
(i) his admissions at the resentencing hearing that he lied to the retained defense
psychologist in 2017 that he neither had a motive for killing Ingebretsen nor planned to
kill him, three “significant matters” according to the trial court, and (ii) his demeanor at
the hearing, when he disingenuously expressed remorse to Ingebretsen’s family (see
People v. Gibson, supra, 2 Cal.App.5th at pp. 328-329 [“trier of fact could reasonably
conclude that defendant’s efforts were not reflective of genuine remorse or
rehabilitation”]; People v. Koontz (2002) 27 Cal.4th 1041, 1090 [“assessments of
credibility are an inescapable part of the trier of fact’s duty”]; People v. Scott (2011)
52 Cal.4th 452, 493 [“a witness’s ‘demeanor is always relevant to credibility’ ”]; People
v. Lewis (2001) 26 Cal.4th 334, 359 [giving “proper deference” to a credibility finding,
because “reviewing court[s] . . . confront a cold record without the trial court’s benefit of
observing firsthand the appearance and demeanor of the witness”]); and, (b) the trial
court’s view of the relatively limited value of a defense expert witness’s evidence (cf.
People v. Sedillo (2015) 235 Cal.App.4th 1037, 1069 [the trial court’s assessment of an
expert witness’s credibility was not an abuse of discretion]).
As for the factor set forth in subdivision (F)(viii) (defendant has had no
disciplinary actions for violent activities in the last five years in which the defendant was
determined to be the aggressor), defendant says the trial court “begrudgingly noted that”

16
defendant “met this factor.” Defendant appears to argue that it was error for the trial
court to afford “little significance” to this factor in light of the trial court’s consideration
of defendant’s “horrific calculated crime against his childhood best friend, the deception
in covering the crime, [an] incredibly violent first decade in prison, [and] his continued
lying and deception . . . to bolster his petition for resentencing.”
The trial court’s determination that this factor was true but of little weight in the
overall qualitative resentencing analysis was not an abuse of discretion, as the trial court
was not obliged merely to conduct a binary “yes/no” analysis whether a specific factor
was true, but was permitted to consider the weight of this factor in light of circumstances
of defendant’s crime. (See Willover, supra, 248 Cal.App.4th at p. 323 [the trial court’s
§ 1170(d)(2) decision “need not be determined by the sheer number of factors on one side
or the other”; § 1170(d)(2)(F) “specifies that the trial court is not restricted to a
consideration of the enumerated factors,” thereby allowing a consideration of “ ‘the
circumstances of the homicide offense’ ”].)
Defendant does not discuss the trial court determination as to the factor set forth in
subdivision (F)(iv)4 and does not assign error to the trial court’s determination as to the
factor set forth in subdivision (F)(vii).5
We find no abuse of discretion in the trial court’s determination that four favorable
factors — (1) the absence of juvenile felony adjudications (subd. (F)(ii)), (2) the
commission of the murder with an adult (who was 19 years old) (subd. (F)(iii)), (3) the
maintenance of family ties (subd. (F)(vii)), and (4) the absence of disciplinary actions for

4 That defendant did not have “insufficient adult support or supervision,” despite
“recent inventions” of claims of an “unnurturing home life punctuated by an undisclosed
period of sexual abuse,” which were “designed to bolster” defendant’s resentencing
petition.
5 That defendant did maintain family ties.

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violent activities in prison in the five years before the filing of the petition (subd.
(F)(viii)) — did not outweigh the other relevant factors, including the circumstances of
the offense and defendant’s continued dishonesty.6 (See Willover, supra,
248 Cal.App.4th at p. 323 [no abuse of discretion in the trial court’s determination that
four favorable statutory factors did not outweigh the other relevant factors, including the
circumstances of the offense].)
Thus, it was not unreasonable or arbitrary for the trial court to resentence
defendant to an LWOP term.
C. Proposition 57
“On November 8, 2016, the electorate passed Proposition 57, and it took effect the
next day. [Citation.]” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304
(Lara).) “ ‘Among other provisions, Proposition 57 amended the Welfare and
Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of
minors . . . can still be 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.’ [Citations.]” (Id. at p. 305.) “Only if the juvenile court transfers the
matter to adult court can the juvenile be tried and sentenced as an adult. [Citation.]” (Id.
at p. 303.)

6 Further, any conceivable error by the trial court either in making discrete section
1170(d)(2)(F) findings or in weighing those factors was harmless, because in light of the
trial court’s emphasis of defendant’s dishonesty and the “horrific calculated crime against
his childhood best friend” we see no reasonable probability the trial court would impose a
different sentence on remand. (See Cal. Const., art. VI, § 13 [no judgment should be set
aside for harmless error]; § 1170(d)(2)(I) [the court “may consider any other criteria that
the court deems relevant to its decision”]; People v. Coelho (2001) 89 Cal.App.4th 861,
889 [it would be an “idle act” to remand for resentencing if it is not reasonably probable
the court would impose a different sentence].)

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 “While Proposition 57’s transfer hearing is similar in some respects to the fitness
hearing conducted prior to the 1999 and 2000 amendments, there are key differences.
Notably, under prior law, juveniles age 16 or older who were accused of certain offenses,
including murder, were subject to a rebuttable presumption that they were unfit for
juvenile court treatment. [Citation.] No such presumption applies in transfer hearings
under Proposition 57, and the People have the burden to show that the juvenile should be
treated as an adult. [Citations.] In addition, in fitness hearings under prior law, a juvenile
court could retain jurisdiction over a juvenile age 16 or older accused of certain offenses,
including murder, only if it found the individual suitable for juvenile court treatment
under each of five criteria. [Citation.] In a transfer hearing under current law, the court
must consider those five criteria, but has broad discretion in applying them, and need not
find that all five support juvenile court treatment. [Citations.]” (People v. Padilla (2020)
50 Cal.App.5th 244, 249-250, fn. omitted (Padilla), review granted August 26, 2020,
S263375.)
Defendant filed his section 1170(d)(2) petition in January 2017, after the effective
date Proposition 57 went into effect. He contends in a supplemental brief that the trial
court was required to transfer the case to the juvenile court for compliance with
Proposition 57.7
Under the rule of In re Estrada (1965) 63 Cal.2d 740, Proposition 57 applies
retroactively, but only to those cases that are not yet final. (Lara, supra, Cal.5th at pp.
303-304.) Whether Proposition 57 apples to a juvenile convicted in adult court who later
collaterally attacks a final conviction is currently before the California Supreme Court.

7 Defendant’s failure to raise this issue in the proceedings below does not forfeit his
claim, which goes to the trial court’s fundamental jurisdiction over his case. (See People
v. Lara (2010) 48 Cal.4th 216, 224-225 [fundamental jurisdiction may be raised for the
first time on appeal].) In addition, addressing the merits of defendant’s claim has the
benefit here of avoiding a claim of ineffective assistance of counsel.

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The parties here each rely on one of two cases reaching opposite conclusions, Padilla and
People v. Federico (2020) 50 Cal.App.5th 318, 326, review granted August 26, 2020,
S263082.
Padilla involved a habeas petitioner who was convicted of a murder committed
when he was 16 years old and sentenced to LWOP in 1999. (Padilla, supra, 50
Cal.App.5th at pp. 246-247.) After his conviction was final, Padilla filed a habeas
petition asking to be resentenced under Miller. (Id. at p. 248.) The trial court granted the
petition and resentenced him to LWOP. (Ibid.) The Court of Appeal reversed the trial
court and remanded for reconsideration in light of Montgomery. (Ibid.) Proposition 57
took effect while the matter was pending in the trial court on remand. (Padilla, at p.
248.) The trial court reimposed the LWOP term on remand, and on appeal, Padilla
sought transfer to the juvenile court under Proposition 57. (Padilla, at p. 248.)
Relying on People v. Jackson (1967) 67 Cal.2d 96, the Court of Appeal held that
“a collateral proceeding may reopen the finality of a sentence for retroactivity purposes,
even while the conviction remains final.” (Padilla, supra, 50 Cal.App.5th at p. 253.)8 It
found the petitioner’s sentence was no longer final as it had been vacated by the habeas
court, and, even if all matters not encompassed by resentencing were still final like the
finding of guilt in Jackson, Proposition 57 nonetheless applied to his resentencing
because a juvenile court disposition would be more advantageous to petitioner than
sentencing as an adult for the criminal offense. (Padilla, at pp. 253-254.) “Because
Proposition 57’s primary ameliorative effect is on a juvenile offender’s sentence,
independent of the convictions, we conclude it applies retroactively to appellant’s

8 The California Supreme Court held in Jackson that capital defendant who obtained
a new penalty trial on habeas may not attack the underlying conviction on remand but can
challenge the reimposition of the death penalty based on new Supreme Court decisions.
(People v. Jackson, supra, 67 Cal.2d at pp. 98-99.)

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nonfinal sentence and requires that he receive a transfer hearing. [Citations.]” (Id. at p.
255, fn. omitted.) The Court of Appeal found this was “consistent with our Supreme
Court’s determination in Lara that the voters intended Proposition 57 ‘ “to extend as
broadly as possible” ’ (Lara, supra, 4 Cal.5th at p. 309), i.e., ‘to every case to which it
constitutionally could apply’ (Estrada, supra, 63 Cal.2d at p. 745).” (Padilla, at p. 256.)
Federico involved a case procedurally more similar to the case before us. In 2008,
the defendant in Federico was convicted of assault with a firearm with various
enhancements and sentenced to a 20-year state prison term. (Federico, supra, 50
Cal.App.5th at p. 322.) In September 2018, the Secretary of the Department of
Corrections and Rehabilitation sent a letter to the trial court providing it with the
authority to recall the sentence pursuant to section 1170(d)(1) based on authority
subsequent to his conviction that rendered the sentence unauthorized. (Federico, at p.
322.)9 The defendant responded with a motion agreeing his sentence was unauthorized
and asking the trial court to remand the case to the juvenile court for proceedings under
Proposition 57. (Federico, at p. 322.) The trial court found Proposition 57 inapplicable
and resentenced defendant to a 17-year term. (Federico, at p. 323.)
The Court of Appeal affirmed. (Federico, supra, 50 Cal.App.5th at p. 321.) It
found Lara was inapplicable to defendant because his conviction became final when the
time to appeal from his original conviction and sentence had passed, long before
Proposition 57 went into effect. (Federico, at p. 325.) The fact that the defendant could
appeal the resentencing decision did not deprive the original judgment of its finality. (Id.
at pp. 325-326.) The Federico court found “even if a trial court has authority to recall a

9 At any time following the recommendation of the Secretary of the Department of
Corrections and Rehabilitation or certain other officers, the trial court may “recall the
sentence and commitment previously ordered and resentence the defendant in the same
manner as if they had not previously been sentenced, provided the new sentence, if any,
is no greater than the initial sentence.” (§ 1170(d)(1).)

21
sentence under section 1170, subdivision (d), it does not follow that the sentence is not a
final judgment under Estrada.” (Id. at p. 326.) It noted that section 1170(d)(1) was an
exception to the general rule that a court loses jurisdiction to resentence the defendant
once the sentence begins, and it does not address reopening a judgment to apply recently
enacted changes in the law. (Federico, at pp. 326-327.) Allowing the Proposition 57
hearing was inconsistent with the text of section 1170(d), which “specifically provides
that the court may ‘resentence the defendant in the same manner as if he or she had not
previously been sentenced.’ [Citation.]” (Federico, at p. 327.) Finally, the full
resentencing rule of People v. Buycks (2018) 5 Cal.5th 857 was inapplicable as, unlike
Buycks, the case in Federico did not involve Proposition 57 resentencing. (Federico, at
p. 328.)10
Published decisions subsequent to Federico and Padilla have found Padilla to be
the better reasoned of the two decisions. (See, e.g., People v. Hwang (2021) 60
Cal.App.5th 358, 366-367, review granted Apr. 14, 2021, S267274 [following Padilla
and noting contra authority of Federico]; People v. Lopez (2020) 56 Cal.App.5th 835,
845, review granted Jan. 27, 2021, S265936 [rejecting Federico and following Padilla].)
We agree. “In a criminal case, judgment is rendered when the trial court orally
pronounces sentence. [Citations.]” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn.
9.) Recall and resentencing under section 1170(d)(2) renders the judgment (at least for
the purpose of sentencing) no longer final.11 Proposition 57, which, under Lara and

10 Buycks held that “when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances.’ [Citations.]”
(People v. Buycks, supra, 5 Cal.5th at p. 893.)
11 We need not, and decline to, determine whether a defendant could use section
1170(d)(2) or another recall of sentence procedure to collaterally attack the conviction
underlying the sentence. (See People v. Clark (2017) 8 Cal.App.5th 863, 875

22
Estrada, applies to sentences that were not final when it took effect, therefore applies to
defendant’s case.
“The appropriate remedy is a remand to the trial court with directions for the
matter to be transferred to the juvenile court for a juvenile adjudication. [Citation.]”
(People v. Hwang, supra, 60 Cal.App.5th at p. 367.)
DISPOSITION
Defendant’s sentence is conditionally reversed. The matter is remanded to the
trial court with directions to refer the case to the juvenile court for a transfer hearing, to
determine if it would have transferred the case to adult criminal court had it originally
been filed in juvenile court in accordance with current law. If the juvenile court
determines it would not have transferred the matter to the criminal court, it shall treat
defendant’s convictions as juvenile adjudications and impose an appropriate disposition.
If the juvenile court determines it would have transferred defendant to adult criminal
court, it shall transfer the case to the trial court, which shall then reinstate the sentence it
imposed at the section 1170(d)(2) hearing.

/s/
BLEASE, J.

We concur:

/s/
RAYE, P. J.

/s/
ROBIE, J.

[resentencing provision of Prop. 36, § 1170.126 does not authorize collateral attack on
prior strike conviction].)

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