Filed 4/17/24 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

SHAWN VINCENT GRAY,

Defendant and Respondent.

F085699

(Super. Ct. No. BF160326A)

MODIFICATION OF OPINION

(NO CHANGE IN JUDGMENT)

THE COURT:

It is hereby ordered that the opinion filed herein on April 4, 2024, be modified as 

follows:

1. On page 1, delete the second paragraph below the caption and insert the 

following new paragraph in its place: 

“Cynthia J. Zimmer, District Attorney, and Anthony S. Yim, Deputy District 

Attorney, for Plaintiff and Appellant.”

2. On page 5, delete the third full paragraph under the “DISCUSSION” heading 

and insert the following two new paragraphs in its place:

“Second, the People did not question whether or how Judge Cannon had the 

authority to even consider Gray’s petition. Instead, they focused on the language of 

section 1026.5 regarding the calculation of maximum terms of commitment, and whether 

that statute allowed for a superior court to later recalculate a maximum commitment term. 

Gray’s response brief was similarly circumscribed, and he argued section 1172.75 should 

be applied here because a failure to do so would unconstitutionally violate the equal 

protection provisions of the state and federal constitutions.

 
2.

As a result, both parties’ original briefing only addressed the substantive merits of 

their underlying positions and we therefore ordered supplemental briefing.”

Except for the modification set forth, the opinion previously filed remains 

unchanged.

This modification does not effect a change in the judgment. 

SNAUFFER, J.

WE CONCUR:

DETJEN, Acting P. J.

MEEHAN, J
Filed 4/4/24 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

SHAWN VINCENT GRAY,

Defendant and Respondent.

F085699

(Super. Ct. No. BF160326A)

OPINION

APPEAL from orders recalling and modifying a judgment of the Superior Court of 

Kern County. Gloria J. Cannon, Judge.

Cynthia J. Zimmer, District Attorney, and Anthony J. Yim, Deputy District 

Attorney, for Plaintiff and Appellant.

Conness A. Thompson, under appointment by the Court of Appeal, for Defendant 

and Respondent.

-ooOooIn January 2016, respondent Shawn Vincent Gray reached a plea agreement with 

the prosecution and entered no contest pleas to one count of stalking (Pen. Code,1

§ 646.9, subd. (b)) and two counts of making criminal threats (§ 422). He also admitted a 

1 All undesignated statutory references are to the Penal Code.
2.

prior strike allegation (§§ 667, subds. (c)–(j) & 1170.12, subds. (a)–(e)) and six one-year 

prior prison commitment allegations (former § 667.5, subd. (b)(1) [hereafter 667.5(b)] .) 

The parties further agreed that the trial court would resolve Gray’s concomitantly 

entered pleas of not guilty by reason of insanity (NGI) without a jury trial and instead by 

reviewing the reports of various “alienists.” It did and found Gray NGI. 

During his plea colloquy, Gray acknowledged that an NGI verdict would mean 

that he would be committed to the Department of Mental Health2for a maximum term of 

19 years four months, and that this commitment could also “be extended if they find 

you’re not restored to sanity at a later point in time.” Gray’s counsel concurred in full, 

including to the maximum commitment term. The trial court’s minutes confirm that 

Gray’s no contest pleas were “entered on condition” of a “maximum term of 19 years, 

4 months.” (Capitalization omitted.) At the February 2016 disposition hearing, the court 

formally imposed this judgment. Gray did not appeal, nor did he ever seek collateral writ 

relief, and the judgment thereafter became final.

In 2019, effective January 1, 2020, Senate Bill No. 136 (SB 136) amended 

section 667.5, and limited one-year prior prison term sentencing enhancements to

sexually violent offenses. (See current § 667.5(b); Stats. 2019, ch. 590, § 1 (2019–2020 

Reg. Sess.); People v. Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings).) All other 

one-year sentencing enhancements arising from prior prison commitments under the 

previous version of that section were declared legally invalid. (Jennings, supra, 

42 Cal.App.5th at p. 682.)

Two years after that, the Legislature passed Senate Bill No. 483 (SB 483), which 

made SB 136’s changes to section 667.5 partially retroactive so as to include previously 

final criminal judgments. (Stats. 2021, ch. 728, § 1 [“[I]t is the intent of the Legislature 

to retroactively apply ... [SB 136] to all persons currently serving a term of incarceration 

2 Now the Department of State Hospitals (DSH). 
3.

in jail or prison for these repealed sentence enhancements.” (Italics added.)].) SB 483 

took effect on January 1, 2022, and its provisions were codified as section 1171.1. 

(Stats. 2021, ch. 728, § 3.) Section 1171.1 was subsequently renumbered in 2022 without 

substantive change as section 1172.75. (Stats 2022, ch. 58, § 12, eff. June 30, 2022.)

Notably, none of the changes to the one-year prison prior criminal sentencing

enhancements of section 667.5(b) was made applicable to a previously calculated 

maximum term of commitment in NGI judgments like Gray’s.

In January 2023, presumably on Gray’s behalf,3the Kern County Public Defender 

filed a “Petition to Recall Maximum Commitment Time and Strike Legally Invalid 

Enhancement” (some capitalization omitted) in the Kern County Superior Court, in which 

his deputy specifically cited section 1172.75 and SB 483 in the petition’s caption.4 

Other than this passing reference to SB 483 and section 1172.75 in its caption, the 

“petition” (or “motion”) did not further identify a source for the superior court’s 

underlying authority to recall and modify the terms of Gray’s then-final 2016 NGI 

judgment. Although the “petition [was] based on the Court’s records in this case ... [and] 

also based on any other evidence, including testimony that may be presented at the 

hearing on this matter,” no “evidence” or “testimony” was adduced at the hearing.5

3 The petition alleged that a “Mr. Innocent” was requesting the superior court to 

take judicial notice of the records in Gray’s underlying 2016 judgment. Just who this 

mysterious “Mr. Innocent” was, or what he had to do with Gray’s case, has never been 

explained.

4

 In the footers, the petition was instead labeled as a “Motion to Recall Max [sic] 

Term of Commitment.” No explanation was offered for the difference.

5

 In the argument portion of the petition, the deputy public defender relied on 

People v. Hernandez (2005) 134 Cal.App.4th 1232 (Hernandez) and People v. Nunez

(2012) 210 Cal.App.4th 625 (Nunez). However, both those cases involved a defendant’s 

direct appeal from an NGI judgment, and the question in those cases was whether the 

calculation of the maximum term of commitment in NGI cases must also reflect 

section 654’s limiting effects on sentences for interrelated offenses. Both courts held it 

did. (See Hernandez, supra, 134 Cal.App.4th at p. 1235; Nunez, supra, 210 Cal.App.4th 

at p. 628.) These two cases not only predated the subsequent statutory changes made to 
4.

In a brief three-page response, the People opposed the petition without disputing 

the applicability of section 1172.75 or SB 483, and instead argued that the petition should 

be denied because reducing Gray’s original maximum commitment term would endanger

public safety within the meaning of section 1172.75, subdivision (d)(1). Likewise, the 

People did not contest the superior court’s jurisdiction to entertain Gray’s petition in the 

first instance. 

In granting the petition, the court stated:6

“When the Court reads [section] 1026.5(a)(1) and it discusses the maximum 

sentence is the upper term plus the enhancements, we now have the invalid prison 

priors and I don’t believe the Court can impose them at this point given they’re 

legally invalid. [¶] I understand [the People’s] argument ... regarding the 

discretion of the Court if there is a threat by the defendant. I believe that is 

addressed by [section] 1026.5(b), which allows the People to file a petition to 

extend the time. As indicated in [the deputy public defender’s] paperwork or her 

response, even if the Court grants the [petition], the defendant is not scheduled for 

release now. And while the argument submitted by the People does indicate he’s 

currently still a threat, in 2029 when he would be scheduled for release, it’s 

unknown if he would be a threat at that time. The People have the ability to file to 

extend his commitment. [¶] For those reasons I’m going to grant the [petition] as 

prayed. I will recall the sentence and reset the sentence to a maximum of 13 years, 

four months.” (Italics added.) 

the sentencing provisions engendered by SB 483 and section 1172.75, but they were 

direct challenges to an original calculation of the maximum commitment term. 

The deputy public defender also analogized to two recently enacted sentencing 

modifications having nothing to do with section 667.5(b) priors, in which the Legislature 

had included NGI acquittees in their scope, and where such acquittees were statutorily 

entitled to petition for relief. We discuss these enactments more fully below, but we 

emphasize at the outset — and throughout our discussion — that no similar legislative 

modifications have ever been made with regard to SB 483 or section 1172.75. Moreover, 

Gray’s petition did not mention these disparities, nor attempt to bridge the analytical gap. 

6 To clarify, Judge John S. Somers found Gray NGI and imposed the original 2016 

judgment. Judge Gloria J. Cannon handled the 2023 petition and recalled, recalculated, 

and imposed a different maximum commitment term, which eliminated the six 

section 667.5(b) one-year priors. The People’s appeal is from Judge Cannon’s orders.
5.

Thus, in granting Gray’s freestanding petition (or “motion”), the court recalled 

Gray’s final 2016 NGI judgment, modified one of its underlying terms by disregarding 

the six previously calculated section 667.5(b) priors, and recommitted Gray to “any 

appropriate state hospital pursuant to Penal Code [section] 1026,” for a new “maximum 

term of commitment [of] 13 years 4 months.” (Some capitalization omitted.) 

To reiterate, neither party — nor the court — ever discussed the court’s 

jurisdiction to consider the petition in the first instance, or the court’s authority to modify 

the 2016 final judgment by substantially altering one of its terms, and recommitting Gray 

under a different maximum term.

The People appealed, claiming the court erred by recalculating Gray’s maximum 

term of commitment on two grounds: (1) the legislative changes that eliminated most

section 667.5(b) sentencing enhancements did not retroactively apply to Gray’s 2016 

maximum term of commitment; and (2) because Gray continued to be a threat to public 

safety, any reduced commitment recalculation was erroneous.

DISCUSSION

There are two distinct, and largely unaddressed, justiciability issues that must be 

resolved at the outset before we can move on to consider the merits.

First, the People noticed their appeal as being taken from Judge Cannon’s 

“decision to reduce Defendant’s sentence,” even though Gray was never sentenced. 

Furthermore, Gray did not challenge the People’s appealability allegation. 

Second, in their initial appellate briefing, the People did not question whether or 

how Judge Cannon had the authority to even consider Gray’s petition. As a result, both 

parties’ original briefing only addressed the substantive merits of their underlying 

positions. We therefore ordered supplemental briefing.

As discussed below, we conclude that the People’s appeal here was statutorily 

authorized — although not on the ground the People originally alleged — and we 

therefore have appellate jurisdiction. However, we also find that the superior court 
6.

lacked jurisdiction to entertain and consider Gray’s petition in the first instance and its 

subsequent orders were void.

Because our resolution of this second issue is dispositive, we may not and do not 

resolve the parties’ contentions on the underlying merits.

I. Our Jurisdiction: Appealability

As mentioned above, the People noticed their appeal as being one taken from 

Judge Cannon’s “decision to reduce Defendant’s sentence.” (Italics added.) 

Correspondingly, in their opening brief the People sought appellate “relief pursuant to 

[section] 1238 [subdivision] (a)(6) as the trial court reduced the punishment imposed by 

reducing the maximum confinement time.” (Italics added.) However, Gray was found 

not guilty by reason of insanity, i.e., he was acquitted. Thus, he was never “sentenced,” 

“punished,” or “confined,” because those terms all refer to judgments imposed following 

a conviction, but not to NGI state hospital civil commitments.

In their opening brief, the People stated that the question of appealability was “an 

issue of first impression for the courts,” but never went on to propose how we should 

resolve this question, and instead simply moved on to the merits of their claims. In his 

response brief, Gray also skirted whether the People’s appeal was cognizable, other than 

to concede that it was “timely filed.” 

As a result, we first ordered the parties to address three appealability questions: 

(1) does section 1238, subdivision (a)(6) apply here;7(2) if it does not, were Judge 

Cannon’s orders otherwise appealable by the People; and (3) if not, must the People’s 

appeal be dismissed? In other words, before anything else, we must first determine 

whether Judge Cannon’s 2023 actions recalling Judge Somers’s 2016 final NGI 

judgment, and modifying it by recalculating Gray’s maximum term of commitment, are 

properly subject to a People’s direct appeal.

7 Undesignated subdivisions refer to section 1238.
7.

It is rudimentary that an appellate court has jurisdiction over a direct appeal only 

where there is an appealable order or an appealable judgment. (People v. Montellano

(2019) 39 Cal.App.5th 148, 153; Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [an 

appealable order or judgment “is a jurisdictional prerequisite to an appeal” (italics 

added)].)

Moreover, whether or not the parties discuss it, we are required to “raise the issue 

on [our] own initiative whenever a doubt exists as to whether the trial court has entered a 

final judgment or other order or judgment made appealable by [statute].” (Jennings v. 

Marralle, supra, 8 Cal.4th at p. 126.) Thus, the first part of our supplemental briefing 

order ensued.

In criminal cases, “ ‘[t]he People’s right to appeal is statutory, and appeals that do 

not fall within the exact statutory language are prohibited.’ [Citation.] The statutory 

circumstances permitting the People’s appeal are specified in section 1238. [Citation.] 

[Subdivision (a)(6)] permits the People to appeal from ‘[a]n order modifying the verdict 

or finding by reducing the degree of the offense or the punishment imposed or modifying 

the offense to a lesser offense.’ ” (People v. Saibu (2022) 81 Cal.App.5th 709, 732 

(Saibu), italics added.)

Here, however, Judge Cannon did not modify the 2016 NGI verdict nor revisit the 

validity of Gray’s no contest pleas and prior conviction admissions. Nor did Judge 

Cannon reduce the degree of the originally charged offenses — which had none — or 

modify them to a lesser offense different from those to which Gray had pled no contest in 

2016. Finally, because Gray was never convicted of a criminal offense — indeed, he was 

found not guilty — he was also never punished for his offenses. Thus, by its very terms, 

subdivision (a)(6)’s “exact statutory language” simply does not apply here. (Saibu, 

supra, 81 Cal.App.5th at p. 732.)

In their supplemental brief, the People have conceded that subdivision (a)(6) is 

inapplicable. However, they respond to our second appealability question by arguing that 
8.

subdivisions (a)(5) and (a)(10) instead apply and, therefore, in answer to our third 

question, they contend their appeal should not be dismissed.8 

In his supplemental response brief, Gray also agrees that subdivision (a)(6) does 

not apply and correctly states that subdivision (a)(10) is inapt. However, he insists that 

subdivision (a)(5) is also inapplicable and urges that the People’s appeal must therefore 

be dismissed. 

We conclude that subdivision (a)(5) does apply. 

“[S]ubdivision (a)(5) permits a People’s appeal from ‘[a]n order made after 

judgment, affecting the substantial rights of the people.’ An order after judgment 

affecting the substantial rights of the People is generally one that affects the judgment or 

its enforcement, alters the defendant’s status, or hampers the prosecution’s ability to 

carry out future prosecutorial duties. [Citation.] Such cases include orders that affect the 

defendant’s sentence or the timing of his release.” (People v. Hampton (2022) 

74 Cal.App.5th 1092, 1100 (Hampton), italics added.)

Gray first argues that Judge Cannon’s 2023 actions in this case were actually not 

“orders,” contending the court instead “recalled judgment, reset the maximum term of his 

NGI commitment, and reimposed the judgment.” Just how Judge Cannon could “recall” 

a judgment, “reset” a commitment term, and “reimpose” a judgment without ordering 

those things to occur is not explained.

8

In their supplemental reply brief, the People have also abandoned their 

subdivision (a)(10) claim. That subdivision permits the People to appeal from “[t]he 

imposition of an unlawful sentence” (italics added) but no sentence was ever imposed in 

this case. It seems Judge Cannon also inadvertently misspoke when she too stated that 

she was recalling and “reset[ting]” Gray’s “sentence.” (Italics added.)

To reiterate, and because this error permeates both parties’ briefing despite it 

being crucial to the resolution of this case, there was no sentence in this case, whether by 

Judge Somers or Judge Cannon, nor was a sentence ever modified or “reset.” Period. 

(See People v. K.P. (2018) 30 Cal.App.5th 331, 340 (K.P.) [“[a]n insanity acquittee is not 

sentenced; he or she is committed to a state hospital for treatment”].)
9.

Gray offers no authority to support his rather odd definition of the term “order,” 

and we decline to adopt it here. (See Code Civ. Proc, § 1003 [“Every direction of a court 

or judge, made or entered in writing, and not included in a judgment, is denominated an 

order.”].) Indeed, if these were not “orders,” it is unclear how they would possess any 

legal force in the first place.

Gray next contends that Judge Cannon’s actions did not affect the People’s 

substantial rights. To support this argument, he cites a host of cases where courts have 

found various other kinds of orders that did actually affect the People’s rights within the 

meaning of subdivision (a)(5). He then concludes that because none of these other orders 

involved what happened here, that subdivision therefore does not apply. However, it is 

axiomatic that cases are not authority for propositions not considered, especially when it 

comes to such a negative inference. (People v. Williams (2004) 34 Cal.4th 397, 404.)9

Moreover, one of Gray’s cited authorities makes it clear that “orders entered by 

the trial court and appealed by the People [that] either directly altered the judgment or 

somehow directly affected the defendant’s status as it related to the judgment already 

imposed,” are appealable under subdivision (a)(5). (People v. Benavides (2002) 

99 Cal.App.4th 100, 105.) 

Judge Cannon’s orders were “indisputably made ‘after [the 2016] judgment;’

judgment was imposed in [Gray’s] case when he was originally [committed in 2016].

[The orders] also affect[ed] the People’s substantial rights in that [they] determine[d]

whether the trial court [could] exercise its powers to recall the previous judgment and 

9 Gray also makes a curiously circular argument that because four of the cases he 

cites in which subdivision (a)(5) was found applicable all “involved errors,” and further, 

because Judge Cannon’s orders recalling and recalculating his commitment term were 

supposedly not errors, Judge Cannon’s orders were therefore not appealable under 

subdivision (a)(5). In other words, if the People were to ultimately lose on the merits 

regarding Judge Cannon’s orders, they also should not have been able to have appealed 

the court’s orders in the first place. Needless to say, no authority is cited for this 

bootstrapping syllogism.
10.

[recommit Gray]. [Citation.] Ultimately, the order[s] resulted in a substantial 

modification of the original judgment. [Citation.] Thus, the trial court’s order[s]

determining [Gray] is entitled to relief qualif[y] as ‘[a]n order made after judgment, 

affecting the substantial rights of the people,’ and is appealable under section 1238, 

subdivision (a)(5).” (Hampton, supra, 74 Cal.App.5th at p. 1101; cf. People v. Superior 

Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1294–1295 [recalling a judgment and 

resentencing after Proposition 36 was an order modifying the judgment and therefore “a 

postjudgment order, which may be appealable under Penal Code section 1238, 

subdivision (a)(5)”].) 

We liberally construe a party’s notice of appeal (see Cal. Rules of Court, 

rule 8.100(a)(2)) so long as it does not prejudicially affect the opposing party. (K.J. v. 

Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882–883 [“Once a notice of 

appeal is timely filed, the liberal construction requirement compels a reviewing court to 

evaluate whether the notice, despite any technical defect, nonetheless served its basic 

function — to provide notice of who is seeking review of what order or judgment — so

as to properly invoke appellate jurisdiction.”].) Gray has offered nothing to show how he 

would be prejudiced by our finding that subdivision (a)(5) applies in this case; indeed, he 

did not even challenge the People’s appeal until we ordered him to brief the issue.

We therefore find the People’s appeal from Judge Cannon’s orders is cognizable 

under subdivision (a)(5), and our appellate jurisdiction is properly invoked.

II. The Superior Court’s Jurisdiction: Recalling Gray’s 2016 NGI Judgment 

We next ordered supplemental briefing to address whether Judge Cannon had 

jurisdiction: (1) to entertain and consider Gray’s petition/motion to recall the 2016 

judgment; and (2) to then recall and modify the judgment by recalculating Gray’s 

maximum term of commitment.
11.

A. Factual/Procedural Background

As discussed above, Gray’s petition did not directly address these jurisdictional 

questions. Instead, the petition roughly analogized to section 1170.127, a provision 

which was specifically enacted to overturn our decision in People v. Dobson (2016) 

245 Cal.App.4th 310 (Dobson), superseded in part by Assembly Bill No. 103 (2017-2018 

Reg. Sess.), where we had held that the changes to the Three-Strikes law engendered by 

Proposition 36 did not extend to the maximum terms of commitment for NGI acquittees. 

(Dobson, supra, 245 Cal.App.4th at p. 318.)10 

Gray’s petition also referred to the Legislature’s extension of the provisions of 

Proposition 47 — which reduced certain felonies to misdemeanors — to NGI acquittees, 

and his counsel quoted: “It is the intent of the Legislature ... to allow people who are 

committed to the State Department of State Hospitals upon a finding of not guilty by 

reason of insanity ... for an offense that would otherwise fall within the resentencing 

provisions of Section 1170.126 or 1170.18 of the Penal Code, as enacted by 

Proposition 36 of the 2012 statewide general election or Proposition 47 of the 2014 

statewide general election, to petition the original committing court for relief under those 

10 Proposition 36, or the Three Strikes Reform Act of 2012, among other things 

enacted section 1170.126, which specifically authorized petitions for recall and 

resentencing for some third-strike defendants serving life terms based on non-serious or 

non-violent felonies. (§ 1170.126, subd, (b); see People v. Yearwood (2013) 

213 Cal.App.4th 161, 167–168.) Gray was not a third striker and would not have been 

eligible for relief under Proposition 36 in any event. (See § 1170.126, subd. (c).)

After our decision in Dobson, supra, in 2017 the Legislature enacted 

section 1170.127 (Stats. 2017, ch. 17, § 25 (Assembly Bill No. 103)), and enabled 

eligible NGI acquittees to take advantage of section 1170.126 and its recall procedures. 

(§ 1170.127, subd. (a) [“A person who is committed to a state hospital after being found 

not guilty by reason of insanity pursuant to Section 1026 may petition the court to have 

his or her maximum term of commitment, as established by Section 1026.5, reduced to 

the length it would have been had Section 1170.126 been in effect at the time of the 

original determination.”].) Again, however, because he is not a third-striker, Gray’s 

commitment is also unaffected by section 1170.127.
12.

sections. This act is intended to nullify the holding in [Dobson, supra] (2017 Cal. Legis. 

Serv. Ch. 17 § 2.).” (Italics added.)11 

Gray’s petition did not mention that no similar legislative action had been 

undertaken that applied the ameliorative provisions of SB 483 and section 1172.75 to 

NGI acquittees in the same manner as that afforded under sections 1170.126, 1170.127, 

or 1170.18, subdivision (o). Similarly, he did not discuss the relevance of the fact that 

even having recently done so for other NGI acquittees — and certainly being aware of its 

quite recent enactment of section 1172.75 — the Legislature had not applied that 

section’s provisions to NGI commitments. To date, it still has not.

Thus, not only did Gray’s petition not explain how any of these other rather 

narrowly drawn statutory enactments applied to his case but, more importantly, how they 

gave the superior court jurisdiction to entertain a petition for recall relief and to then

reconsider his previously final NGI judgment. Simply put, even though he nominally 

relied on them in the petition, Gray never explained how SB 483 or section 1172.75 gave 

the superior court the authority to recall his 2016 final NGI judgment.

In criminal cases, “[u]nder the general common law rule, a trial court is deprived 

of jurisdiction to resentence a criminal defendant once execution of the sentence has 

commenced. [Citations.] Where the trial court relinquishes custody of a defendant, it 

also loses jurisdiction over that defendant.” (People v. Karaman (1992) 4 Cal.4th 335, 

344; People v. Velasco (2023) 97 Cal.App.5th 663, 669 (Velasco).) The only exceptions 

are statutory. (See, e.g., §§ 1170, et seq., and 1172, et seq.))

11 In 2014, Proposition 47 added section 1170.18, which also created a specific 

recall and resentencing procedure for those defendants who were then-serving a sentence 

for the now non-felony misdemeanor offenses. (§ 1170.18, subd. (a).) Significantly, this 

time NGI acquittees were included in its provisions from the outset. (See § 1170.18, 

subd. (o).) Once more, however, none of Gray’s commitment offenses was among those 

included in Proposition 47’s restructuring of the Penal Code, and section 1170.18, 

subdivision (o) again does not apply to him.
13.

The question thus narrows to whether, absent specific enabling statutory authority, 

this basic principle also deprives a superior court of jurisdiction to recall a final NGI 

judgment, recalculate its maximum term of commitment, and recommit a defendant who 

had been lawfully committed and transferred to the custody and control of the state’s 

mental health institutions years before.

B. Legal Background

“Absent factual or evidentiary disputes, our review for subject matter jurisdiction 

is de novo.” (People v. Cota (2023) 97 Cal.App.5th 318, 328–329 (Cota); Velasco, 

supra, 97 Cal.App.5th at p. 669 [“ ‘When the evidence is not in dispute, subject matter 

jurisdiction is a legal issue, which we review de novo.’ ”].) The underlying facts and 

procedural history in this matter are not disputed.

“Once a criminal defendant has been found not guilty by reason of insanity, that 

person ‘is no longer a criminal defendant, but a person subject to civil commitment.’

[Citation.] ‘The purpose of commitment following an insanity acquittal, like that of civil 

commitment, is to treat the individual’s mental illness and protect him and society from 

his potential dangerousness. The committed acquittee is entitled to release when he has 

recovered his sanity or is no longer dangerous.’ ” (K.P., supra, 30 Cal.App.5th at 

p. 338.)

“In a commitment order the trial court is required to state the ‘ “maximum term of 

commitment” [meaning] the longest term of imprisonment which could have been 

imposed for the offense or offenses of which the person was convicted, including the 

upper term of the base offense and any additional terms for enhancements and 

consecutive sentences which could have been imposed ....’ ” (K.P., supra,

30 Cal.App.5th at p. 338, italics added, quoting § 1026.5, subd. (a)(1).) 

Gray does not dispute that this was exactly what Judge Somers did in 2016, and to 

which he agreed, or that it was incorrect. The 19 year four month maximum NGI 

commitment term was the sentence that could have been imposed had Gray been 
14.

convicted of the offenses with which he was charged. However, Gray was not convicted 

of anything; indeed, he was acquitted. 

As discussed above, with regard to section 667.5(b) priors, SB 483 applied SB 136 

“retroactively [to] the repeal of sentence enhancements for prior prison or county jail 

felony terms ....” (Sen. Com. on Pub. Safety, Analysis of [SB 483] as amended March 3, 

2021, at p. 1, italics added.) Noting that “[e]nhancements add time to a person’s 

sentence . . . ,” the Committee on Revision of the Penal Code recommended retroactively 

applying the elimination of section 667.5(b) enhancements to people currently held in

prisons and jails, to “ensur[e] that no one is serving time based on outdated rules.” (Sen. 

Com. on Pub. Safety, Analysis of [SB 483] as amended March 3, 2021, at pp. 1–3, italics 

added.) Thus, SB 483 was designed to be “another step forward in sustaining legislative 

momentum to eliminate unjust sentence enhancements and end wasteful incarceration

spending in favor of community reinvestment.” (Sen. Com. on Pub. Safety, Analysis of 

[SB 483] as amended March 3, 2021, at p. 6, italics added.)

Significantly, not only did SB 136 and SB 483 not address NGI acquittees whose 

maximum terms of confinement had been calculated years before, and which had 

lawfully been calculated by including the then-fully applicable 667.5(b) priors, but by 

definition, an NGI acquittee is neither incarcerated, nor currently being held in a prison or 

county jail.

Similarly, section 1172.75 specifically only provided affected convicted

defendants a retroactive procedural remedy for correcting any now-invalid sentencing

enhancements, even if their pre–2020 criminal judgments were final. Thus, 

subdivision (b) of section 1172.75 directs the Secretary of the California Department of 

Corrections and Rehabilitation (CDCR) and/or the correctional administrator in each 

county to “identify those persons in their custody currently serving a term for a judgment 

that includes an enhancement described in subdivision (a) and ... provide the name of 

each person, along with the person’s date of birth and the relevant case number or docket 
15.

number, to the sentencing court that imposed the enhancement.” (§ 1172.75, subd. (b),

italics added.) Again, however, no mention is made of NGI judgments, NGI 

commitments, or those acquittees who are currently in the care and custody of the DSH.

When the CDCR or the county correctional administrator sends the requisite 

information included in subdivision (b) of section 1172.75 to the superior court, “the 

court shall review the judgment and verify that the current judgment includes a 

sentencing enhancement described in subdivision (a),” and “[i]f the court determines that 

the current judgment includes an enhancement described in subdivision (a), the court 

shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c), italics

added.) Once more, no provisions were made for NGI acquittees in the custody of the

DSH and who were never sentenced in the first place.

Likewise, when resentencing a defendant under section 1172.75, the superior court 

is directed to “apply the sentencing rules of the Judicial Council and apply any 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.” (§ 1172.75, 

subd. (d)(2), italics added.) In addition to striking any inapplicable one-year prison 

priors, “[t]he court may consider postconviction factors, including, but not limited to, the 

disciplinary record and record of rehabilitation of the defendant while incarcerated, 

evidence that reflects whether age, time served, and diminished physical condition, if 

any, have reduced the defendant’s risk for future violence, and evidence that reflects that 

circumstances have changed since the original sentencing so that continued incarceration

is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3), italics added.)

Finally, and perhaps most importantly, subdivision (c) of section 1172.75 vests a

superior court with jurisdiction to “recall,” “review,” and “resentence” a criminal 

defendant if and only if the CDCR or the applicable county administrators notifies the 

“sentencing” court that section 1172.75 may apply to a particular defendant.
16.

Section 1172.75 therefore presupposes that the superior court is only authorized to 

recall the cases of previously convicted defendants and, when its other preconditions are 

met, it only gives the superior court jurisdiction to reconsider an otherwise final judgment 

of conviction. As we have repeated ad nauseum, however, “because an insanity acquittee 

is relieved of responsibility for their crimes, he or she is not convicted, and therefore may 

not be sentenced.” (People v. Barner (2024) __Cal.App.5th__, __ (C095986, Mar. 26, 

2024, slip opn. at p. *10) (Barner).)

To belabor the obvious, because neither SB 483 nor section 1172.75 made any 

provisions for final NGI judgments or to their underlying maximum terms of 

commitment, Gray’s reliance on them in his petition was, for purposes of our 

jurisdictional inquiry, of no help.

C. Analysis

For our purposes, we begin with Cota, supra, a true section 1172.75 case 

involving a criminal resentencing, where we observed that “ ‘[s]ubject matter 

jurisdiction ... is the power of the court over a cause of action or to act in a particular 

way.’ [Citation.] Thus, ‘ “ ‘[t]he principle of “subject matter jurisdiction” relates to the 

inherent authority of the court involved to deal with the case or matter before it.’ ” ’ 

[Citation.] ‘By contrast, the lack of subject matter jurisdiction means the entire absence 

of power to hear or determine a case; i.e., an absence of authority over the subject 

matter.’ [Citation.] In other words, ‘ “ in the absence of subject matter jurisdiction, a 

trial court has no power “to hear or determine [the] case.” ’ ” (Cota, supra,

97 Cal.App.5th at pp. 328–329.) 

We explained that “[i]n general, ‘ “once a judgment is rendered and execution of 

the sentence has begun, the trial court does not have jurisdiction to vacate or modify the 

sentence.” ’ [Citation.] However, there are many important exceptions to this general 

rule. [Citations.] Although the ‘unauthorized sentence’ doctrine has sometimes been 

described as one such exception [citation], our Supreme Court has recently clarified that 
17.

it is not. [Citation.] The unauthorized sentence doctrine is an exception to the rules of 

waiver and forfeiture and provides that an unauthorized sentence may be corrected ‘at 

any time, even after a judgment of conviction has become final, and even if the judgment 

has already been affirmed on appeal.’ [fn.] [Citation.] However, ‘to invoke this rule the 

court must have jurisdiction over the judgment.’ ” (Cota, supra, 97 Cal.App.5th at 

p. 329, italics added.) 

Consequently, “ ‘a freestanding motion challenging an incarcerated defendant’s 

sentence is not a proper procedural mechanism to seek relief.’ [Citation.] Rather, ... ‘[a]

motion is not an independent remedy, but must be attached to some ongoing action. 

[Citation.] Thus, a defendant who wishes to challenge a sentence as unlawful after the 

defendant’s conviction is final and after the defendant has begun serving the sentence 

must do more than simply file a motion in the trial court making an allegation that the 

sentence is legally infirm.’ ” (Cota, supra, 97 Cal.App.5th at pp. 329–330.)

In Cota, the specific question was whether section 1172.75 granted the superior

court subject matter jurisdiction over a motion, brought by a pro per defendant, for 

resentencing pursuant to that section. (Cota, supra, 97 Cal.App.5th at pp. 330–331.) 

Consistent with decisions from other courts that had considered the question, we 

concluded that “section 1172.75 does not authorize a defendant to seek resentencing on 

his or her own motion or petition. Rather, the process is triggered by [the CDCR or 

county custodian] identifying a defendant as a person serving a sentence that includes a 

prior prison term enhancement.” (Cota, supra, 97 Cal.App.5th at p. 332; see People v. 

Burgess (2022) 86 Cal.App.5th 375, 378–379, 381–382 (Burgess) [not only did the 

superior court lack jurisdiction to adjudicate the defendant’s motion for resentencing, the 

appellate court lacked jurisdiction to consider the defendant’s appeal of the order 

denying the petition for resentencing because the defendant’s motion was merely an 

improper “ ‘freestanding motion’ ” unattached to any ongoing action; “[a]ppellants’

convictions had been final for years,” and “there were no ‘ “specific statutory avenues for 
18.

[appellants] to seek resentencing ....’ ”]; accord People v. Escobedo (2023) 

95 Cal.App.5th 440, 447 [“section 1172.75 does not authorize ... a [freestanding] petition 

or a motion to strike the unauthorized enhancements”]; People v. Newell (2023) 

93 Cal.App.5th 265, 268 [§ 1172.75 “ ‘simply does not contemplate resentencing relief 

initiated by any individual defendant’s petition or motion’ ”]; cf. In re Cook (2019) 

7 Cal.5th 439, 451 [in most cases, once the judgment has become final, there is nothing 

pending to which a motion may attach]; People v. King (2022) 77 Cal.App.5th 629, 640 

(King) [an admittedly unauthorized 30–year–old sentence, but “the trial court had no 

jurisdiction to entertain King’s motion to vacate his sentence, and therefore this court has 

no appellate jurisdiction to entertain the appeal”].)

The question before us thus narrows even further to whether the maximum term of 

commitment entered in a final NGI judgment of acquittal is somehow jurisdictionally 

different from a judgment of conviction in which an actual sentence was imposed. Gray 

offers no authority that suggests as much, and we have found none.

Instead, Gray argues that Judge Cannon retained “continuing jurisdiction” over 

Gray’s case and points out that superior courts do retain some authority to deal with 

various ancillary details involving post–judgment concerns that affect NGI acquittees and 

how their NGI judgments are to be carried out. Nonetheless, none of his cited case 

authorities involved a modification of the judgment itself, let alone a recalculation of the 

maximum commitment term.12 

12 Gray also cites Code of Civil Procedure section 187, which provides in part that 

“[w]hen jurisdiction is ... conferred ... all the means necessary to carry it into effect are 

also given ....” Again, however, this begs the question. Our inquiry is whether the 

superior court’s jurisdiction was “conferred” in the first place so as to even consider

Gray’s petition, not whether the court’s “means” of exercising that jurisdiction were or 

were not also “given.” Any limited continuing personal jurisdiction section 1026.5 gives 

to superior courts regarding NGI acquittees does not include an ability to recall a final 

judgment and recalculate its original terms. If it did, Gray would presumably have cited 

applicable authority, rather than referring to inapposite section 1172.75 and SB 483. 
19.

Rather, Gray’s cited authorities are all founded in the quite specific statutory

provisions of section 1026.5 itself, which describe the procedures for how NGI 

judgments and commitment orders are to be carried out in the future, including if and 

when the acquittee’s sanity is or is not restored.

Put differently, we acknowledge that unlike criminal judgments, in NGI cases a

trial court does retain some limited jurisdiction over an acquittee’s case regarding future 

hearings to determine whether his or her sanity has been restored. (See, e.g., In re Cirino

(1972) 28 Cal.App.3d 1009, 1014 (Cirino) [section 1026’s imposition of a duty on the 

superior court to direct that the defendant be confined in the state hospital “carries with it 

the power to make whatever orders are necessary to make the confinement effective until 

such time as the court, after notice and hearing, shall find and determine that his sanity 

has been restored”]; People v. Michael W. (1995) 32 Cal.App.4th 1111, 1116 [“the 

committing court has continuing power to ‘make whatever orders are necessary to make 

the confinement effective’ until the court determines that sanity has been restored”].) 

However, this continuing jurisdiction is narrowly circumscribed by section 1026, 

et seq., and none of these sections addresses the underlying maximum term of 

commitment. (Cf. People v. Alvarez (2019) 32 Cal.App.5th 1267, 1274 [“Nothing in 

Cirino [supra,] supports the right of a defendant committed pursuant to an NGI plea to 

conduct freestanding discovery unrelated to a pending motion, petition or other 

proceeding.”].)13

13 Gray’s reliance on People v. Lara (2010) 48 Cal.4th 216 (Lara) is similarly

inapt. Lara involved whether a trial court had jurisdiction to deal with a claim that an 

extension of an NGI commitment could stand when the People had failed to timely meet 

the statutory requirements of section 1026.5 once the original maximum commitment 

term had been exceeded. (Lara, supra, 48 Cal.4th at p. 235.) However, nothing in Lara

addressed how the maximum commitment term was originally calculated or whether it 

could later be modified by an NGI acquittee’s non-statutory stand-alone “petition” for 

relief citing inapplicable statutory changes.
20.

“The legislative histories of both [SB 136 and SB 483] contain a clear 

presupposition by the Legislature of an imposed and executed sentence.” (People v. 

Rhodius (2023) 97 Cal.App.5th 38, 47 (Rhodius), rev. granted/depub. den., February 21, 

2024, S283169, italics added). “The findings, costs, and ramifications of [SB 136 and 

SB 483] cited during the legislative sessions presuppose inmates who are serving 

additional time as a result of the sentencing enhancement under section 667.5(b). The 

references to financial and familial burdens do not logically follow if a defendant is not 

actually serving additional time as the result of an imposed and executed sentence

associated with a section 667.5(b) prior.” (Rhodius, supra, 97 Cal.App.5th at p. 48, 

italics added.)14

To summarize, in reaction to our decision in Dobson, supra, the Legislature 

responded by enacting section 1170.127, and specifically allowed NGI acquittees a 

vehicle for relief that parallelled the third–striker relief provided to convicted defendants 

under section 1170.126. (See People v. Steward (2021) 63 Cal.App.5th 895, 899.)

Similarly, in enacting section 1170.18, the Legislature again created a specific recall 

14 The underlying issue in Rhodius, supra, was whether section 1172.75 applied 

when a defendant’s prior section 667.5(b) sentencing enhancements were originally 

imposed but stayed — thereby not truly “enhancing” a sentence by imposing additional

incarceration — and the Rhodius court concluded it did not. (Rhodius, supra, 

97 Cal.App.5th at pp. 41–43.) Other courts to have considered this question have focused 

on the meaning of the term “imposed,” and have disagreed with Rhodius. (See People v. 

Saldana (2023) 97 Cal.App.5th 1270, 1276, rev. granted March 12, 2024, S283547; 

People v. Christianson (2023) 97 Cal.App.5th 300, 305, rev. granted, February 21, 2024, 

S283189; People v. Renteria (2023) 96 Cal.App.5th 1276, 1282–1283.) By granting 

review of the issue, the Supreme Court has agreed to resolve this “imposition” issue, but 

because section 1172.75 does not apply when no sentence is imposed on those priors in 

the first place — whether executed or stayed — as in an NGI case, these cases are not 

relevant to the question of an NGI term of commitment and the Supreme Court’s 

resolution of the “imposition” issue will not assist our resolution of the jurisdictional 

question presented here.
21.

procedure for NGI acquittees who were committed based on now non-felony 

misdemeanor offenses. (§ 1170.18, subds. (a) & (o).) 

And that is exactly the point here, because NGI acquittees were specifically 

included in both those new recall provisions. No similar subdivision was included in 

section 1172.75, nor was a new — perhaps section “1172.76” — enacted. The 

Legislature simply did not provide a similar procedural vehicle for NGI acquittees.

“The Legislature ‘is presumed to be aware of all laws in existence when it passes 

or amends a statute. [Citations.] “ ‘The failure of the Legislature to change the law in a 

particular respect when the subject is generally before it and changes in other respects are 

made is indicative of an intent to leave the law as it stands in the aspects not 

amended.’ ” ’ ” (Barner, supra, __Cal.App.5th at p.__ (slip opn. at pp. *16-17), quoting 

In re Greg F. (2012) 55 Cal.4th 393, 407.)

We digress to note in dicta that for the first time on appeal Gray has raised an 

equal protection claim, alleging that any disparate treatment for recalling maximum NGI 

commitment terms versus criminal conviction sentences is unconstitutional. He contends 

that to deny him the recalculation benefits statutorily afforded to sentenced criminal 

defendants — and to a limited group of other NGI acquittees whose maximum terms 

were specifically allowed to be recalculated under other statutorily authorized 

provisions — would deny him his state and federal guarantees of equal protection under

the law. (See U.S. Const., 14th Amend.; Cal. Const., art. I, § 7).

First, Gray forfeited this equal protection claim by failing to raise it in the superior

court. (Barner, supra, __Cal.App.5th at p.__ (slip opn at p. *35), citing People v. 

Alexander (2010) 49 Cal.4th 846, 880, fn. 14; see People v. Rogers (2006) 39 Cal.4th 

826, 854, and People v. Dunley (2016) 247 Cal.App.4th 1438, 1447.) 

Second, forfeiture notwithstanding, this places the constitutional cart before the 

jurisdictional horse and assumes the superior court had the authority to consider Gray’s 

2023 petition in the first place — an issue that we resolve against him — and further 
22.

assumes that we may consider a constitutional claim raised for the first time in a

respondent’s appellate brief where the determinative justiciability questions at issue were 

never raised or developed below, and where the constitutional claim has been tardily 

raised in a respondent’s brief on the merits.

Put differently, if the superior court did not have jurisdiction to entertain Gray’s 

petition in the first place, our resolution of a hypothetical underlying constitutional claim 

that necessarily assumes such jurisdiction would be an advisory opinion at best, and 

judicial overreach as a matter of fact. We shall leave any equal protection contentions for 

another day.

Ultimately, Gray’s argument that NGI acquittees should be entitled to a procedural 

mechanism analogous to section 1172.75’s, which would then have given the superior 

court jurisdiction to entertain his petition to challenge his maximum term of commitment,

must be addressed to the Legislature. We apply the law as written, but we do not write it. 

(See People v. Superior Court (Guevara) (2023) 97 Cal.App.5th 978, 981, review 

granted March 12, 2024, S283305 [“The role of the judiciary is to interpret statutes, not 

to draft them.”].) 

Finally, in his supplemental response brief Gray asks us for the first time to 

“constructively” construe his original unauthorized superior court petition/motion “as a 

remedy in habeas corpus, under which the superior court would had [sic] jurisdiction to 

entertain and consider ....” 

Whether Gray could have made — or in the future may make — a collateral attack

on his NGI maximum term of commitment on habeas corpus, or if and when such a claim

was — or is — ripe for review considering he has not yet been hospitalized for even the 

13 year 4 month recalculated commitment term Judge Cannon imposed, are issues not 

before us and were not properly developed below. We do not express any opinion in this 

regard.
23.

Moreover, not only does this belated habeas corpus argument dodge the 

jurisdictional question as to whether the superior court had the authority to consider the 

original non-habeas petition that Gray actually did file, he provides no authority for an 

appellate court to retrospectively transform the People’s direct appeal into one from a 

non-existent superior court order granting a never-filed petition for habeas corpus 

relief.15

The cases Gray alludes to in support of this “constructive” request involved either 

direct appeals where a party’s appeal may in a reviewing court’s discretion be considered 

instead as a petition for a writ of mandate or prohibition, where a writ petition in the 

appellate court could be recharacterized as lying in mandate rather than prohibition, or 

where a mandate/prohibition petition could instead be construed as a habeas petition. 

None applies here. Gray has neither appealed nor sought any type of writ relief, either 

here or below. We therefore decline his invitation.

Because neither Gray, “Mr. Innocent,” nor the Kern County Public Defender had

authority under section 1172.75, SB 136, SB 483 — or any other authority for that 

matter — to file a standalone petition in this matter, the superior court also lacked 

jurisdiction to consider it, let alone to then go on to modify and recalculate Gray’s 2016 

maximum commitment term. (Burgess, supra, 86 Cal.App.5th at p. 381, 382 [trial court 

lacked jurisdiction to adjudicate Burgess’s freestanding motion for resentencing under 

§ 1172.75]; cf. King, supra, 77 Cal.App.5th at p. 634 [“ ‘once a judgment is rendered and 

execution of the sentence has begun, the trial court does not have jurisdiction to vacate or 

modify the sentence’ ” (italics added)].)

15 It also undermines Gray’s contention that the People’s appeal must be dismissed 

because it did not neatly fall within section 1238 because the People are statutorily 

entitled to appeal from a superior court’s grant of habeas corpus relief. (See § 1506.)
24.

III. Conclusion

The People’s appeal is properly before us as taken from “order[s] made after 

judgment, affecting the substantial rights of the people” within the meaning of 

section 1238, subdivision (a)(5). (See Hampton, supra, 74 Cal.App.5th at p. 1100.)

We hold that the superior court lacked jurisdiction to entertain Gray’s “Petition to 

Recall Maximum Commitment Time and Strike Legally Invalid Enhancement” pursuant 

to “Pen. Code § 1172.75 and SB 483,” because those provisions did not and do not apply, 

nor did any other authority permit the superior court to consider and grant the relief Gray 

sought.

As a result, the court’s orders recalling the 2016 judgment and recalculating 

Gray’s maximum term of commitment were “ ‘void on [their] face.’ ” (Varian Medical 

Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 200.) On an appeal from void orders, our 

appellate jurisdiction is limited to reversing the superior court’s void acts. (Ibid.) We do 

so here.

We emphasize that our holding is narrow because we resolve this matter at the 

threshold. We may not and do not consider the parties’ other claims regarding the 

underlying merits, constitutional or otherwise, nor do we opine whether Gray may have 

alternative avenues for relief.

DISPOSITION

The superior court’s orders recalling and modifying the 2016 NGI judgment by 

recalculating Gray’s maximum term of commitment are reversed and vacated. The court 

is ordered to instead enter a new and different order denying Gray’s petition in its 

entirety.
25.

The superior court clerk is directed to prepare all appropriate orders and serve the 

Department of State Hospitals and any other necessary parties.

SNAUFFER, J.

WE CONCUR:

DETJEN, Acting P. J.

MEEHAN, J.