1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

NATHAN JOSHUA RAMAZZINI,

Defendant and Appellant.

C088503

(Super. Ct. No. CR35134)

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.
2

(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 
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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 
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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 
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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:

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(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
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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 selfimprovement, 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 crossexamination 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.
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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 
13

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 
14

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 
15

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 
16

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” 
17

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.
18

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].)
19

“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. 
20

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.)8It 

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.)
21

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).)
22

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
23

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].)