Filed 9/16/24 P. v. Moreno CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDDIE FERNANDO MORENO,

Defendant and Appellant.

 B333875

 (Los Angeles County

 Super. Ct. No. LA039438)

APPEAL from an order of the Superior Court of Los 

Angeles County, Gregory A. Dohi, Judge. Affirmed.

James Koester, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Jason Tran and Kristen J. Inberg, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________
2

This appeal requires that we opine on the interplay 

between Penal Code1 sections 1170.126 and 1172.75, an issue 

currently pending before our Supreme Court. Section 1170.126

was enacted when voters passed Proposition 36, also known as 

the Three Strikes Reform Act of 2012 (Reform Act). Proposition 

36 amended the Three Strikes law to provide that going forward 

a defendant with two or more prior serious or violent felony 

convictions, whose current conviction was for a nonserious or 

nonviolent felony, would no longer receive a life sentence unless 

the prosecution pleaded and proved certain aggravating factors. 

(§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) Section 

1170.126 sets forth a procedure for persons serving a life term 

pursuant to the Three Strikes law that was imposed prior to the 

Reform Act’s effective date to petition for resentencing if their

third conviction was for a nonserious and nonviolent felony. 

(§ 1170.126, subd. (b).) Upon such a petition, the trial court must

reduce such a third strike sentence to double the term for the 

current offense “unless the court, in its discretion, determines 

that resentencing the petitioner would pose an unreasonable risk 

of danger to public safety.” (Id., subd. (f).)

Section 1172.75, subdivision (a) provides that most prior 

prison term enhancements (former § 667.5, subd. (b)) imposed 

before January 1, 2020, are invalid. Subdivision (c) of section 

1172.75 states that if a current judgment includes an invalid 

prior prison term enhancement, the court must recall the 

sentence and resentence the defendant. Section 1172.75, 

subdivision (d)(2) requires that, in addition to removing the prior 

prison enhancements, at resentencing the court must “apply any 

1 All unspecified statutory references are to the Penal Code.
3

other changes in law that reduce sentences or provide for judicial 

discretion so as to eliminate disparity of sentences and to 

promote uniformity of sentencing.” The resentencing must result 

in a lesser sentence than was originally imposed “unless the court 

finds by clear and convincing evidence that imposing a lesser 

sentence would endanger public safety.” (Id., subd. (d)(1).)

A question has arisen over whether section 1170.126 

provides the exclusive method to reduce a third strike component 

of any pre-Reform Act sentence, or whether a court resentencing 

pursuant to section 1172.75 must reduce a pre-Reform Act third 

strike sentence for a nonserious and nonviolent felony unless the 

prosecution pleads and proves disqualifying factors to support the 

existing sentence. Every single Court of Appeal to consider this 

question has held that the resentencing provisions of section 

1170.126 provide the exclusive mechanism for reducing a third 

strike sentence for a nonserious and nonviolent felony, and that 

“applying the revised penalty provisions of the . . . Reform Act to 

reduce a defendant’s indeterminate life term to a determinate 

term when the defendant is being resentenced under section 

1172.75 due to an invalid prior prison term enhancement 

unconstitutionally amends the resentencing procedure and 

requirements set forth in section 1170.126 of the voter-approved 

. . . Reform Act.” (People v. Superior Court (Williams) (2024) 102 

Cal.App.5th 1242, 1250, review granted Aug. 28, 2024, S286128;

accord, People v. Santos 2024) 100 Cal.App.5th 666, review 

granted May 29, 2024, S284341; People v. Kimble (2024) 99 

Cal.App.5th 746, review granted Apr. 24, 2024, S284259; People 

v. Superior Court (Guevara) (2023) 97 Cal.App.5th 978, review 

granted Mar. 12, 2024, S283305.)
4

Defendant Eddie Fernando Moreno and the Attorney 

General both urge us to adopt the view of the lone justice that 

has dissented from this view. (People v. Superior Court 

(Guevara), supra, 97 Cal.App.5th at pp. 988-995 (dis. opn. of 

Baltodano, J.).) We decline to do so for the reasons explained 

below.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2001, while Elena Hiller was packing her 

belongings into her truck, Moreno approached her with a knife 

and demanded she hand over her wallet to him. When Hiller told 

him she only had one dollar, Moreno demanded the keys to her 

truck, made her get into the vehicle with him, and drove away 

with her in the truck. After driving a few blocks, Moreno took 

Hiller’s wallet, forced her out of the truck, and drove away. 

About a week later, officers observed Moreno driving the truck. 

They tried to initiate a traffic stop but Moreno sped away and 

evaded the pursuing police vehicle for five or six miles before the 

chase ended. When Moreno was arrested police found a knife and 

cocaine on his person.

In 2003, a jury convicted Moreno of carjacking (§ 215, subd. 

(a); count 1), robbery (§ 211; count 2), unlawful driving or taking 

of a vehicle (Veh. Code, § 10851, subd. (a); count 3), evading an 

officer (id., § 2800.2, subd. (a); count 4), and possession of a 

controlled substance (Health & Saf. Code, § 11350, subd. (a); 

count 5). As to counts 1 and 2, the jury also found that Moreno

used a knife (§ 12022, subd. (b)(1)-(2)).

The trial court found true the allegations that Moreno had 

suffered two prior serious or violent felony juvenile adjudications 

for robbery with the use of a firearm and robbery with the use of 

a deadly weapon which both qualified as strikes within the 
5

meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, 

subds. (a)-(d)), and that he had served three prior prison terms 

(§ 667.5, subd. (b)). The court sentenced Moreno to an aggregate 

prison term of 80 years to life, composed of third-strike terms of 

26 years to life on count 1, 26 years to life on count 2, and 25 

years to life on count 4, as well as three years for the three prior 

prison term enhancements.2

In March 2014, Moreno timely petitioned for relief under 

section 1170.126. The court denied the petition, finding that

Moreno was ineligible for relief. The court construed language in 

section 1170.126 which states that “[a]n inmate is eligible for 

resentencing if: [¶] . . . [¶] . . . [t]he inmate’s current sentence was 

not imposed for any of the offenses” included in the list of violent 

and serious felonies (id., subd. (d)(2), italics added) to mean that

Moreno was eligible for relief only if all his current commitment 

offenses were nonserious and nonviolent. Because Moreno’s 

current counts of conviction included serious and violent felonies, 

the court found him ineligible for relief. The record does not 

indicate Moreno sought review of this determination.

In 2015, our Supreme Court rejected the notion that section 

1170.126, subdivision (d)(2) disqualifies an inmate from 

resentencing relief under the Reform Act unless all of the

prisoner’s current commitment offenses are nonserious and 

nonviolent. (People v. Johnson (2015) 61 Cal.4th 674, 688-695.) 

After acknowledging the statute’s ambiguity, the court held 

“resentencing is allowed with respect to a count that is neither 

serious nor violent, despite the presence of another count that is 

2 Moreno received a stayed term of 25 years to life on 

count 3 and a concurrent term of 25 years to life on count 5.
6

serious or violent.” (Id. at p. 695.) The record does not indicate 

that Moreno sought to challenge the trial court’s prior ruling 

regarding his eligibility for resentencing under section 1170.126 

after the Supreme Court decided Johnson.

In 2022, Moreno moved for resentencing under section 

1172.75 following a referral by the Department of Corrections 

and Rehabilitation recommending the court recall his sentence. 

Moreno requested dismissal of the three one-year prior prison 

term enhancements imposed as part of his sentence, reduction of 

count 5 to a misdemeanor pursuant to Proposition 47, and 

dismissal of one or more of his prior strikes pursuant to section 

1385. He also requested “a full resentencing” where he would 

receive the benefit of any other ameliorative sentencing 

provisions enacted after his prior sentence became final. Nothing 

in the record indicates, however, that he requested that the court 

resentence him in accord with the Reform Act; as noted above, his 

only requests with regard to his third strike sentences were the

Romero3 motion to strike one of his prior strikes and his request 

to stay the sentence on count 2 so that it did not run 

consecutively.

The trial court recalled Moreno’s sentence and, on 

August 28, 2023, resentenced him. The court struck the three 

one-year prior prison term enhancements, reduced count 5 to a 

misdemeanor, and stayed the sentence on count 2 pursuant to 

section 654. The court denied Moreno’s Romero motion to dismiss 

his prior strikes pursuant to section 1385. The court effectively 

left the remainder of Moreno’s sentence in place, imposing a new 

sentence of 51 years to life.

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
7

DISCUSSION

Moreno does not contend the trial court erred in 

resentencing him to 26 years to life on count 1, as carjacking is 

both a serious (§ 667.5, subd. (c)(17)) and violent (§ 1192.7, subd. 

(c)(27)) felony and therefore not subject to the Reform Act 

provisions regarding nonserious, nonviolent third strike 

convictions. Moreno instead argues, and the Attorney General 

agrees, that the trial court erred in failing to reduce Moreno’s

sentence for evading an officer (count 4), which is not a serious or 

violent felony, to a second-strike determinate term. In the 

parties’ view, current law states that a defendant with two or 

more prior serious or violent felony convictions cannot receive a 

life sentence for a current felony conviction that is a nonserious 

or nonviolent felony unless the prosecution pleads and proves 

certain disqualifying factors. (§§ 667, subd. (e)(2)(C), 1170.12, 

subd. (c)(2)(C).) Because the prosecution did plead or prove such 

factors here, the parties argue we should remand this matter for 

Moreno to be resentenced on count 4.

4

We are not bound by the Attorney General’s concession, 

and thus independently analyze this issue. (People v. Kimble, 

4 Although Moreno’s resentencing counsel did not 

specifically argue section 1170.126 applied to him, Moreno has 

not waived the issue. An unauthorized sentence, meaning one 

that “cannot ‘lawfully be imposed under any circumstance in the 

particular case’ [citation], . . . is reviewable ‘regardless of whether 

an objection or argument was raised in the trial and/or reviewing 

court.’ [Citations.] An obvious legal error at sentencing that is 

‘correctable without referring to factual findings in the record or 

remanding for further findings’ is not subject to forfeiture. 

[Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 887.)
8

supra, 99 Cal.App.5th at p. 749 [“As a general rule, we are not 

bound by concessions made by the People in a criminal case. 

[Citation.] And here, we are not inclined to give the Attorney 

General’s concession significant deference, as the issue before us 

turns on a question of statutory interpretation.”].) We agree with 

the opinions to date that have analyzed this issue, all of which 

have rejected the position advocated by Moreno and the Attorney 

General.

In a nutshell, the parties’ “view of section 1172.75, 

subdivision (d)(2), automatically mandates the trial court to 

reduce [Moreno’s] indeterminate life term imposed [on count 4] 

under the Three Strikes law to a determinate term . . . . Under 

this view, section 1172.75, subdivision (d)(2), renders void for 

those lucky enough to have had a prior prison term enhancement 

the provisions of section 1170.126, requiring the filing of a 

petition, the deadline for filing the petition, and the trial court’s 

discretion to deny the petition on the ground of an unreasonable 

risk to public safety.” (People v. Superior Court (Guevara), supra, 

97 Cal.App.5th at p. 984.) We have several problems with this 

position, all of which prior courts have noted.

For starters, such a construction of section 1172.75 would 

unconstitutionally amend section 1170.126. The Reform Act

“allows the Legislature to amend it by statute only if the statute 

passes each house of the Legislature by a vote of two-thirds of the 

membership. (Prop. 36, § 11, subd. (b).) Senate Bill No. 483 

(2021-2022 Reg. Sess.), codified as section 1172.75, did not pass 

the senate with a two-thirds vote. [Citation.]” (People v. 

Superior Court (Guevara), supra, 97 Cal.App.5th at p. 985.) The 

parties’ interpretation of section 1172.75 would 

unconstitutionally amend section 1170.126 in multiple ways.
9

First, it would eliminate the requirement that a 

resentencing petition for a pre-Reform Act Three Strikes sentence

be filed within two years of the effective date of the Reform Act

(in other words, no later than November 2014), and only later 

upon a showing of good cause. (People v. Superior Court 

(Williams), supra, 102 Cal.App.5th at p. 1267.)

Second, it improperly expands the scope of retroactivity 

contemplated by the Reform Act and conflicts with our Supreme 

Court’s guidance in People v. Conley (2016) 63 Cal.4th 646. 

(People v. Kimble, supra, 99 Cal.App.5th at pp. 753-755.) In 

Conley, the “Supreme Court decided ‘whether third strike 

defendants who were sentenced under the Three Strikes law 

before November 7, 2012, but whose judgments were not yet final 

as of that date, are entitled to automatic resentencing under the 

revised penalty provisions of the Reform Act.’ [Citation.] The 

court concluded they were not and ‘instead may seek

resentencing by petitioning for recall of sentence under section 

1170.126.’ [Citation.]” (People v. Santos, supra, 100 Cal.App.5th 

at p. 674.) “Thus, we are bound by Conley to conclude that, as to 

[Moreno], even during a full resentencing, the Reform Act cannot 

be applied retroactively to entitle him to automatic resentencing 

outside of section 1170.126.” (Id. at p. 675; see also People v. 

Superior Court (Williams), supra, 102 Cal.App.5th at pp. 1262-

12645; People v. Kimble, supra, 99 Cal.App.5th at p. 758.) Put 

5 Although she agreed the application of section 1172.75 

urged by the parties here would constitute an impermissible 

amendment to the Reform Act, Justice Mary J. Greenwood 

dissented from the majority’s retroactivity analysis and would 

have read section 1172.75 to allow defendants a renewed 

opportunity to petition for relief under section 1170.126 in 
10

differently, with regard to any third strike component of his 

sentence, Moreno had to file a petition to recall that sentence and 

request resentencing under section 1170.126. (People v. Conley, 

supra, 63 Cal.4th at pp. 657-659.)

Third, the parties’ interpretation would unconstitutionally 

amend the trial court’s discretion not to reduce a third strike 

sentence if “resentencing the petitioner would pose an 

unreasonable risk of danger to public safety.” (§ 1170.126, subd. 

(f).) Moreno points out that in most of the prior published cases,

the Three Strikes defendants being resentenced under section 

1172.75 had previously been denied relief under section 1170.126

based on findings that they posed a danger to society. (People v. 

Superior Court (Williams), supra, 102 Cal.App.5th at p. 1249; 

People v. Kimble, supra, 99 Cal.App.5th at p. 750; People v. 

Superior Court (Guevara), supra, 97 Cal.App.5th at p. 982; but 

see People v. Santos, supra, 100 Cal.App.5th 666 [no indication 

that the defendant previously petitioned for relief under 

§ 1170.126].) Moreno asserts the court’s failure to make a finding 

of dangerousness when ruling on his prior section 1170.126 

petition means the question of whether section 1172.75 

unconstitutionally amends the court’s discretionary authority 

connection with a resentencing request under section 1172.75. 

(People v. Superior Court (Williams), supra, 102 Cal.App.5th at 

pp. 1268-1274 (conc. & dis. opn. of Greenwood, J.). Here, 

Moreno’s prior section 1170.126 petition was denied on 

procedural grounds later disapproved by our Supreme Court, and 

nothing we say here prohibits him from filing a second section 

1170.126 petition provided that he can show good cause for his 

delay in doing so. (See § 1170.126, subd. (b).)
11

under section 1170.126 to deny relief where resentencing would 

pose an unreasonable risk of public danger is not ripe as to him.

We disagree. Section 1170.126 permits a court to deny 

resentencing if it finds by a preponderance of the evidence that 

doing so would pose a danger to the public. (Id., subd. (f).) 

Section 1172.75, however, ratchets up that burden up to the 

higher one of clear and convincing evidence. (Id., subd. (d)(1).)

This is not an insignificant change and, more to the point, 

amounts an unconstitutional end run around the requirement of 

a two-thirds vote in the Legislature to amend section 1170.126.

(See People v. Superior Court (Guevara), supra, 97 Cal.App.5th at 

p. 985.)

It would also materially alter without the required twothirds vote the express factors in section 1170.126, subdivision (g) 

governing a court’s discretion in determining whether the 

petitioner poses a risk to public safety. Both sections 1170.126 

and 1172.75 permit the court to consider the defendant’s 

disciplinary record and record of rehabilitation while 

incarcerated. (Compare § 1170.126, subd. (g)(2) with § 1172.75, 

subd. (d)(3).) The overlap, however, ends there. Section 

1170.126, subdivision (g)(3) permits consideration of “evidence 

the court, within its discretion, determines to be relevant in 

deciding whether a new sentence would result in an 

unreasonable risk of danger to public safety”; section 1172.75, 

subdivision (d)(3) uses more restrictive language permitting 

consideration of evidence that has “reduced the defendant’s risk 

for future violence” as opposed to other types of public safety 

risks. A court in a section 1170.126 proceeding can consider the 

petitioner’s criminal history in assessing public safety risks (id. 

subd. (g)(1)); section 1172.75, subdivision (d) lists only 
12

postconviction factors and thus does include prior criminal 

history as a permissible consideration. A court hearing a section 

1172.75 petition may consider “evidence that reflects that 

circumstances have changed since the original sentencing so that 

continued incarceration is no longer in the interest of justice” (id., 

subd. (d)(3)); section 1170.126, subdivision (g) does not list this as 

a permissible consideration. Permitting section 1172.75 to 

override these express provisions in section 1170.126 “would 

conflict with the Reform Act’s intent to protect the public from 

people who pose an unreasonable risk of danger to public safety.” 

(People v. Kimble, supra, 99 Cal.App.5th at pp.754-755, italics 

omitted; see also People v. Superior Court (Williams), supra, 102 

Cal.App.5th at pp. 1261-1262 [reaching similar conclusion].)

Beyond these constitutionality concerns, the parties’ 

interpretation of section 1172.75 also fails to promote sentencing 

uniformity, one of that statute’s express goals. (§ 1172.75, subd. 

(d)(2).) Instead, the parties’ interpretation “carv[es] out a 

favorable exception for a specific subset of defendants—those 

sentenced under the former Three Strikes law who may be 

eligible for resentencing as second strike offenders and who 

received a prior prison term enhancement within the ambit of 

[section 1172.75]. This exception would grant those defendants 

mandatory relief under the [Three Strikes] Reform Act, requiring 

the court to resentence them as second strike offenders, while 

leaving otherwise similarly situated inmates with only the 

Reform Act’s (time-limited) petition process as a path to 

resentencing, with its assessment of disqualifying factors and 

discretionary weighing of safety and recidivism considerations.” 

(People v. Kimble, supra, 99 Cal.App.5th at p.755.)
13

Despite all of the above, the parties urge us to adopt the 

view expressed by Justice Hernaldo Baltodano in his dissent in 

People v. Superior Court (Guevara), supra, 97 Cal.App.5th at 

pages 988-995. That view rests on the assertion that a 

resentencing under section 1172.75 is a full resentencing, and 

therefore a defendant like Moreno is entitled to be resentenced as 

though he was just convicted of a nonviolent and nonserious 

offense. We reject that premise for the same reason the majority 

in Guevara did, namely that the portion of Moreno’s sentence

mandated by the Three Strikes law was not vacated and thus not 

subject to resentencing in a section 1172.75 proceeding. (People 

v. Superior Court (Guevara), supra, at p. 986.) Simply put, 

“because section 1172.75 was not enacted by a two-thirds vote of 

both houses of the Legislature, it is not the mechanism for relief 

for those serving an indeterminate term pursuant to the Reform 

Act.” (Id. at p. 987.) With regard to his third strike sentence on 

count 4, Moreno “is entitled to resentencing only upon a 

successful petition under section 1170.126.” (People v. Santos, 

supra, 100 Cal.App.5th at p. 676.)
14

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

BENDIX, Acting P. J.

KELLEY, J.*

* Judge of the San Luis Obispo County Superior Court,

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.