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Filed 12/22/14 P. v. Thigpen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CLYDE WILLIAM THIGPEN, JR.,

Defendant and Appellant.

C074281

(Super. Ct. No. 07F04369)

In April 2013, defendant Clyde William Thigpen, Jr., filed a petition to recall his 

January 2008 indeterminate life sentence, pursuant to Penal Code section 1170.126.1 The 

statute, enacted as part of a November 2012 initiative measure, provides relief under 

narrow criteria from indeterminate life sentences imposed for recidivism. 

 

1 Undesignated statutory references are to the Penal Code. 
2

Defendant alleged that in January 2008, the trial court had sentenced him to state 

prison for a term of 35 years to life: concurrent terms of 25 years to life for assault with a 

deadly weapon (a car) and assault with force likely to inflict great bodily injury, which 

the court imposed consecutive to a 10-year determinate term for recidivist findings.2 

He further alleged that his commitment convictions did not come within exclusions in 

section 1170.126, subdivision (e)(1) (“serious” and/or violent felonies) or subdivision 

(e)(2) (cross-referencing other offenses specified in § 667, subd. (e)(2)(C)(iii)), and that 

his prior convictions did not come within the exclusions in section 1170.126, subdivision 

(e)(3) (cross-referencing offenses specified in § 667, subd. (e)(2)(C)(iv)). He claimed he 

was thus entitled to resentencing to a determinate sentence of double the term otherwise 

applicable to his convictions (i.e., the same sentence a defendant would receive under the 

prospective amendments to the recidivist sentencing statutes enacted as part of the same 

initiative). (§§ 1170.126, subd. (f); see 667, subd. (e)(1).) Defendant waived his 

personal presence for resentencing. 

The trial court assigned the recall petition to the original trial judge, who was 

available. (§ 1170.126, subd. (b).) The court found that assault with a deadly weapon 

has been a serious felony since 2006, and as a result defendant was ineligible for 

resentencing on that count under section 1170.126, subdivision (e)(1). It also interpreted 

the statute as precluding resentencing on the other assault conviction, even though it was 

not a serious or violent felony, because at least one of the commitment convictions was a 

serious or violent felony. In addition, after its review of an exhibit from the underlying 

 

2 As defendant has pursued relief from a final conviction pursuant to section 1170.126, 

we do not need to address the contretemps regarding whether a defendant whose sentence 

is not yet final on appeal is entitled to application of the revised sentencing provisions 

without filing a petition for recall pursuant to section 1170.126. (People v. Yearwood

(2013) 213 Cal.App.4th 161, 168 (Yearwood) [no retroactive effect].) The issue is 

presently pending in the Supreme Court. (See, e.g., People v. Conley (2013) 

215 Cal.App.4th 1482, review granted Aug. 14, 2013, S211275.) 
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trial and the transcript of the preliminary hearing (the trial transcripts not being available 

at the time of the recall proceeding), the trial court offered its opinion it was “reasonably 

probable” that it would find defendant had been armed with a deadly weapon or intended 

to inflict great bodily injury during the commission of the second assault offense, and 

therefore defendant would be ineligible in any event for resentencing on that count under 

subdivision (e)(2) of the statute. “However . . . , the court at this time need not attempt to 

obtain the trial transcripts and make this specific finding” in light of its ruling that the 

first assault conviction rendered defendant ineligible for resentencing as to either count. 

It therefore denied the petition without a hearing. Defendant appealed. 

The parties dispute whether the order denying defendant’s recall petition is 

appealable. On the merits, defendant asserts that he can be resentenced on an eligible 

commitment conviction even if other commitment convictions are ineligible. He also 

raises numerous arguments in connection with the dictum in the trial court’s order about 

the “likely” findings regarding the conviction for assault with force likely to inflict great 

bodily injury, including a claim that section 654 requires us to stay this count.3

In Teal v. Superior Court (2014) 60 Cal.4th 595 (Teal), our Supreme Court 

recently concluded that a ruling on a section 1170.126 petition is appealable, which lays 

the first issue to rest. On the merits, we conclude the trial court correctly resolved the 

interpretive issue of defendant’s eligibility for resentencing under the statute. The 

facts underlying defendant’s convictions are not relevant to the issues on appeal, and we 

 

3 Contrary to defendant’s assertion in his reply brief, the People’s unaccountable failure 

to respond to this argument does not “forfeit” opposition to it. (People v. Hill (1992) 

3 Cal.4th 959, 995, fn. 3; Wall Street Network, Ltd. v. New York Times Co. (2008) 

164 Cal.App.4th 1171, 1177-1178, fn. 3; Cal. Const., art. VI, § 13.)
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shall omit them as a result.4 We also do not need to add any additional procedural facts 

from the present proceeding beyond those described in this introduction.

DISCUSSION

We do not think that the plain language of section 1170.126 can reasonably be 

construed to allow a defendant with a hybrid indeterminate life sentence—i.e., one 

consisting of terms for both qualifying and disqualifying offenses—to be eligible for 

resentencing per offense, rather than evaluating eligibility on the basis of the judgment 

as a whole. The statute declares its intent to apply only to “persons presently serving 

an indeterminate term of imprisonment . . . whose sentence . . . would not [be] an 

indeterminate life sentence” under the 2012 amendments to section 667 (§ 1170.126, 

subd. (a), italics added); significantly, this qualification does not specify the individual 

terms of which the sentence as a whole is comprised. Again, with respect to the 

substantive criteria for eligibility, it is conditioned on the “current sentence” (§ 1170.126, 

subd. (e)(2), italics added) (rather than “term” (id., subd. (e)(1))) not being imposed for 

any of the offenses specified in subdivision (e)(2); it would thus appear a defendant 

serving a current sentence that includes any life term for a disqualifying offense cannot 

come within this condition. While subdivision (e)(1) might appear at first blush to focus 

on individual life terms in determining eligibility (speaking of an indeterminate term of 

life imprisonment that is not a result of a conviction for a felony or felonies involving 

serious or violent offenses), that runs contrary to the plain statement of intent 

in subdivision (a), which we must read together with the latter subdivision to give effect 

to the intent underlying the statute as a whole. (Hassan v. Mercy American River 

Hospital (2003) 31 Cal.4th 709, 715; Department of Health Services v. Civil Service 

Com. (1993) 17 Cal.App.4th 487, 494-495.)

 

4 Defendant’s request for judicial notice of the record in his direct appeal is therefore 

denied as irrelevant. (People v. Eubanks (2011) 53 Cal.4th 110, 129-130, fn. 9.)
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Moreover, buttressing this plain language (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 279), the proponents of the initiative enacting the statute 

emphasized saving money while protecting public safety: They argued it would “ ‘keep 

dangerous criminals off the streets’ ” by making sure that “ ‘truly dangerous criminals 

will [not] receive [any] benefits whatsoever.’ ” (Yearwood, supra, 213 Cal.App.4th at 

p. 171.) A defendant who has committed one of the proscribed offenses does not become 

any less dangerous in the eyes of the electorate on the basis of committing even more

felonies (even if they are eligible offenses). 

The recent decision in People v. Anthony (2014) 230 Cal.App.4th 1176 is in 

accord with these points, though its precedential value may be ephemeral in light of the 

Supreme Court’s grant of review in all previously published cases involving this issue.5 

We thus do not belabor our analysis and will simply agree, pending our high court’s 

ultimate resolution of the question.

Defendant resorts to the oft-invoked “rule of lenity.” However, “this is a ‘tiebreaking principle’ of statutory interpretation” that we apply only where evidence of 

legislative intent “is in equipoise” as to which of alternate reasonable interpretations 

should prevail. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339, fn. 6.) We have

not found anything equivocal in the intent expressed in the plain statutory language or the 

arguments made in connection with the initiative. The rule of lenity consequently does 

not have any role here. As a result, defendant’s commitment conviction for assault with a 

deadly weapon precluded resentencing on the other assault count.

 

5 People v. Hubbard (2014) 228 Cal.App.4th 1442, review granted and briefing deferred 

Oct. 29, 2014, S221541; In re Machado (2014) 226 Cal.App.4th 1044, review granted 

July 30, 2014, S219819; Braziel v. Superior Court (2014) 225 Cal.App.4th 933, review 

granted July 30, 2014, S218503; In re Martinez (2014) 223 Cal.App.4th 610, review 

granted and briefing deferred on unrelated issue May 14, 2014, S216922. 
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We do not need to reach defendant’s remaining multiple contentions regarding the 

other assault count for two reasons. In light of People v. Anthony, supra, 

230 Cal.App.4th 1176, and our conclusion above, they are moot. Moreover, the order 

does not actually make any factual findings regarding the other count; it merely suggests 

that the findings were likely if necessary. We therefore do not have any occasion to 

consider if such findings need to be the subject of: pleading and proof either in the 

underlying case or in the present proceedings, a jury finding as opposed to the court, or a 

standard of proof greater than preponderance. We also do not need to consider poorly 

framed claims that these findings resulted in a merger of some sort, or in the need to stay 

punishment on the second conviction pursuant to section 654 (defendant not qualifying 

for resentencing). 

DISPOSITION

 Defendant’s request for judicial notice, filed September 30, 2013, is denied. The

judgment is affirmed. 

 BUTZ , Acting P. J.

We concur:

 MAURO , J.

 HOCH , J.
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BUTZ, Acting P. J., Concurring and Dissenting.

“Naturally I concur in the majority opinion I have prepared for the court” (People 

v. Jones (1998) 17 Cal.4th 279, 319 (conc. opn. of Mosk, J.)); “[o]bviously, I concur fully 

in the majority opinion I have authored” (Cowan v. Superior Court (1996) 14 Cal.4th 

367, 378 (conc. opn. of Chin, J.)). 

I write separately to explain my disagreement with the chosen disposition that my 

colleagues favor. Notwithstanding the conclusion in Teal v. Superior Court (2014) 

60 Cal.4th 595 that a defendant has a substantial right in the accurate determination of 

eligibility such that a claim of an erroneous denial of a petition pursuant to section Penal 

Code section 1170.126 is appealable, this leaves the question of the effect of an appellate

ruling that finds a defendant is indeed ineligible for resentencing under the statute. (Teal,

supra, 60 Cal.4th at p. 601.) I conclude this requires us to dismiss the appeal.

A trial court does not have jurisdiction to entertain a petition for resentencing of an 

ineligible defendant. (Cf. People v. Turrin (2009) 176 Cal.App.4th 1200, 1208; People v. 

Chlad (1992) 6 Cal.App.4th 1719, 1725-1726 [both holding untimely motion to recall 

sentence does not confer jurisdiction]; People v. Thornton (1965) 233 Cal.App.2d 1, 2 

[petition for writ of coram nobis insufficient on face does not confer jurisdiction].) Thus, 

if a defendant is in fact ineligible for resentencing, a denial of the petition does not affect 

any substantial right, and an appellate holding of defendant’s ineligibility results in a lack 

of appellate jurisdiction over the appeal. (Cf. Turrin, supra, 176 Cal.App.4th at p. 1208;

Chlad, supra, 6 Cal.App.4th at p. 1726; People v. Andersen (1994) 26 Cal.App.4th 1241, 

1249 [if claimed instructional error prejudicial, it affects the defendant’s substantial rights 

and then appellate court may consider merits initially on appeal under § 1259]; People v. 

Mendez (1999) 19 Cal.4th 1084, 1099-1100; People v. Panizzon (1996) 13 Cal.4th 68, 

89; People v. Hernandez (1992) 6 Cal.App.4th 1355, 1361 [all dismissing appeal where 
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the defendant lacks certificate of probable cause after determining on merits it is subject 

to § 1237.5]; see People v. Elder (2014) 227 Cal.App.4th 1308, 1318-1319 (conc. & dis. 

opn. of Butz, J.) (Elder) [§ 1170.126].)

We may nonetheless issue an advisory opinion to serve as precedent on the merits 

of the denial of the petition, because we always have jurisdiction to determine appellate 

jurisdiction, but the proper course in our disposition is to dismiss the appeal. (Rescue 

Army v. Municipal Court (1946) 28 Cal.2d 460, 464; Abelleira v. District Court of 

Appeal (1941) 17 Cal.2d 280, 302; see Elder, supra, 227 Cal.App.4th at pp. 1319-1320 

(conc. & dis. opn. of Butz, J.).)

 BUTZ , Acting P. J.