Opinion
F086069
09-10-2024
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN NATHANIEL DAVIS, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. F13901960 Houry A. Sanderson, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2013, defendant Jonathan Nathaniel Davis pleaded guilty to three counts of second degree robbery (Pen. Code, § 211) and admitted a personal use of a firearm allegation (§ 12022.53, subd. (b)) and a prison prior term allegation (§ 667.5, former subd. (b)). (Undesignated statutory references are to the Penal Code.) The court sentenced defendant to a stipulated term of 18 years (the upper term of five years on count 1 plus two consecutive one-year terms for counts 2 and 3, another consecutive year for the prison prior enhancement, and 10 years for the gun enhancement).
In 2022, the California Department of Corrections and Rehabilitation identified defendant as an individual potentially eligible for resentencing pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483). In March 2023, the trial court indicated it did not believe defendant was entitled to a full resentencing in light of the plea agreement, but it struck the prison prior enhancement and resentenced defendant to a term of 17 years.
On appeal, defendant asserts the court erred in failing to conduct a full resentencing; accordingly, the matter must be remanded. He further contends any further reduction of his sentence on resentencing shall not be a basis for the People or the court to withdraw from the plea agreement. The People agree that defendant is entitled to a full resentencing, but they contend if, upon remand, the court alters the parties' plea agreement by further reducing defendant's sentence beyond striking the prior prison term enhancement, they have the option to withdraw from the plea agreement pursuant to People v. Stamps (2020) 9 Cal.5th 685.
We vacate the court's order and remand for further proceedings consistent with this opinion.
FACTUALANDPROCEDURALHISTORY
Charges, Verdict, and Original Sentence
In March 2013, defendant was charged with committing three second degree robberies (§ 211): February 27, 2013 (count 1), February 26, 2013 (count 2), and February 24, 2013 (count 3). As to each count, it was alleged defendant personally used a firearm (§ 12022.53, subd. (b)). It was further alleged he suffered a prior conviction within the meaning of section 667.5, former subdivision (b), based on a 2006 conviction for obstructing or resisting an officer in violation of section 69.
On March 8, 2013, in accordance with a stipulated plea agreement, defendant pleaded guilty to the three counts of second degree robbery (§ 211), admitted the gun enhancement (§ 12022.53, subd. (b)) to count 1, and admitted the prison prior allegation (§ 667.5, former subd. (b)); he was sentenced to a term of 18 years. The sentence comprised an upper term of five years on count 1, plus 10 years for the section 12022.53, subdivision (b) firearm enhancement, one year for the section 667.5, former subdivision (b) prison prior enhancement, one year (one-third the midterm) for count 2, and one year (one-third the midterm) for count 3.
Resentencing Proceedings
In December 2021, defendant filed a petition for modification of sentence in light of the passage of Senate Bill 483. On January 18, 2023, the court held a hearing during which the People agreed defendant was eligible to have his prison prior stricken, but they asserted he was not entitled to any other relief because the matter was a stipulated plea and sentence. The matter was reset for March 2023.
Before the next hearing, defendant filed a brief arguing the court should find individuals, including defendant, who were sentenced pursuant to a stipulated plea agreement, eligible for a full resentencing under section 1172.75. The People also filed a brief in which they asserted defendant was entitled to have any invalid prior prison term enhancement removed but the court was without discretion to conduct a full resentencing hearing.
The court held another hearing on March 29, 2023. The court stated it did not believe "it has the jurisdiction to unsettle, so to speak, an agreed upon sentence between the parties other than removing what would be deemed an invalid prison prior Defense counsel argued the court should look at the broad legislative intent of section 1172.75, which "is not just to reduce sentences by elimination of the 667.5(b) prison prior enhancement, but also to ensure equal justice and address systemic racial bias by way of full resentencing, including applying changes in the law that reduce sentences or to provide discretion as to eliminate disparity and criminal uniformity." He asserted it is "fairly clear" the Legislature "intended the law to include cases that resulted in a plea agreement," noting the uncodified legislative history of the statute addressed plea bargains and said "any changes to a sentence as a result of the act shall not be a basis for a prosecutor or court to rescind a plea agreement." The People responded that the legislative intent "talks about the People or the Court not being able to get out of a plea bargain due to the change in the prison prior law." They argued, "We're not trying to get out of [a] plea bargain. We're trying to enforce the plea bargain."
The court denied the defendant's request for a full resentencing. It stated it "is not convinced at this time that a plea bargain case is the same as a non-plea bargain case. The plea bargain requires both parties to agree and then the judge to accept. In this instance, that's exactly what happened. It was not a matter of an open plea where the Court had discretion to select different levels and select an upper term that may not have been properly admitted to for any aggravating purposes or findings based on history or aggravating factors alleged." The court struck the section 667.5, former subdivision (b) prison prior enhancement and reinstated the remaining sentence with the exact same terms-five years on count 1, plus a consecutive one year for count 2, plus a consecutive one year for count 3, and an additional and consecutive 10 years for the section 12022.53, subdivision (b) firearm enhancement.
DISCUSSION
Defendant appeals from the court's order asserting the court erred in failing to conduct a full resentencing. The People agree, but they contend if the court reduces defendant's sentence further, the People have the option of withdrawing from the plea agreement.
I. Standard of Review
"'"When we interpret a statute, '[o]ur fundamental task … is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. … If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.] 'Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.'"'" (People v. Reynoza (2024) 15 Cal.5th 982, 989-990.) "'An uncodified section is part of the statutory law. [Citation.] "In considering the purpose of legislation, statements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration. [Citations.] Although such statements in an uncodified section do not confer power, determine rights, or enlarge the scope of a measure, they properly may be utilized as an aid in construing a statute."'" (Doe v. Superior Court (2023) 15 Cal.5th 40, 69.)
II. Applicable Law
A. Passage of Senate Bill 483 and Enactment of Section 1172.75
In October of 2021, the Governor signed Senate Bill 483, effective on January 1, 2022, which added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares: "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." (§ 1172.75, subd. (a).) The uncodified portion of Senate Bill 483 states, in part, "It is the intent of the Legislature that any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement." (Stats. 2021, ch. 728, § 1.)
Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements. Subdivision (b) directs the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment" that includes a now legally invalid prior prison term enhancement, and to provide the names of such persons, their dates of birth, and the relevant case numbers or docket numbers to the sentencing court that imposed the enhancement. (§ 1172.75, subd. (b).) After the court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.75, "the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
Section 1172.75 provides, when resentencing a defendant, the court must "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).) "The 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).)
B. Effect of Ameliorative Legislation on Judgment Resulting from a Plea
"When parties enter a plea bargain, each side negotiates to gain a benefit. The prosecution most often agrees to a term that is less than the defendant's maximum exposure, obviating the need for a trial and thus lessening the burden on victims, witnesses and the system itself while providing the certainty of a conviction. As here, the defense often achieves the benefit of counts being dismissed or reduced and gains the protection of a more limited exposure to what would otherwise be the risk of harsher punishment. The court may be actively involved in the negotiations and, in any event, must approve the plea agreement, making it the ultimate arbiter of whether the disposition is fair and appropriate. [Citation.] 'Plea negotiations and agreements are an accepted and "integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." [Citations.] Plea agreements benefit that system by promoting speed, economy, and the finality of judgments.'" (People v. Prudholme (2023) 14 Cal.5th 961, 970.)
When a plea of guilty or nolo contendere "is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea." (§ 1192.5, subd. (b).) However, "entering into a plea agreement does not insulate the parties 'from changes in the law that the Legislature has intended to apply to them.'" (Harris v. Superior Court (2016) 1 Cal.5th 984, 991.)
In Harris, the California Supreme Court held the People are not entitled to set aside a plea agreement when a defendant seeks to have his sentence recalled under Proposition 47. (Harris v. Superior Court, supra, 1 Cal.5th at p. 993.) In reaching its conclusion, Harris noted the electorate, in passing Proposition 47, which reduced certain felonies to misdemeanors, expressly stated section 1170.18 governs someone "'serving a sentence for a conviction, whether by trial or plea,'" of one of the affected felonies. (Harris, at p. 991.) Harris concluded "[t]he italicized language makes it clear that the provision applies to someone like defendant who was convicted by plea." (Ibid) That is, "[b]y expressly mentioning convictions by plea, Proposition 47 contemplated relief to all eligible defendants." (Ibid) The Harris court further concluded, "[t]he resentencing process that Proposition 47 established would often prove meaningless if the prosecution could respond to a successful resentencing petition by withdrawing from an underlying plea agreement and reinstating the original charges filed against the petitioner." (Id. at p. 992.) And permitting the People to withdraw from the plea agreement would be "at odds with" one of Proposition 47's primary purposes "to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative." (Ibid) Thus, Harris held the "unambiguous language of section 1170.18 and the expressed intent of Proposition 47" supported its conclusion. (Ibid)
In contrast, in People v. Stamps, supra, 9 Cal.5th 685, the defendant entered into a plea agreement for a specified term that included a prior serious felony enhancement (§ 667, subd. (a)). (Stamps, at p. 693.) While his appeal was pending, a new law-Senate Bill No. 1393 (2017-2018 Reg. Sess.)-went into effect permitting the trial court to strike a serious felony enhancement in furtherance of justice (§ 1385, subd. (a)), which it was not previously authorized to do. (Stamps, at p. 693.) The California Supreme Court held the new law applied to the defendant retroactively and that the matter needed to be remanded to the trial court. (Id. at pp. 692, 699.) However, unlike in Harris, the Stamps court rejected the defendant's contention that the court was authorized to exercise its discretion to strike the enhancement but otherwise maintain the plea bargain. (Id. at p. 701.) In so holding, the Stamps court reasoned, "[t]he Legislature may have intended to modify the sentencing scheme, but the legislative history does not demonstrate any intent to overturn existing law regarding a court's lack of authority to unilaterally modify a plea agreement. Indeed, none of the legislative history materials mention plea agreements at all. What legislative intent can be discerned runs counter to defendant's position." (Id. at p. 702.) Thus, "[n]othing in the language and legislative history of Senate Bill 1393 suggests an intent to modify section 1192.5's mandate that 'the court may not proceed as to the plea other than as specified in the plea' without the consent of the parties." (Id. at p. 704.) "That Senate Bill 1393 is silent regarding pleas and provides no express mechanism for relief undercuts any suggestion that the Legislature intended to create special rules for plea cases involving serious felony enhancements." (Ibid) Accordingly, the Stamps court held the defendant on remand could seek the court's exercise of discretion under the amended law, but if the court chooses to strike the enhancement, its decision could have consequences to the plea agreement. (See Stamps, at pp. 705-708.)
There is currently a split of authority regarding whether the People may withdraw from a plea agreement if the trial court exercises its discretion to further reduce a defendant's sentence beyond striking now invalid prior prison term enhancements at a section 1172.75 resentencing. In People v. Coddington (2023) 96 Cal.App.5th 562, the trial court granted the defendant's request to strike his prior prison term enhancement under section 1172.75 after he was convicted pursuant to a plea agreement. (Coddington, at pp. 565, 567.) On appeal, the First District Court of Appeal, Division One, held, under section 1172.75 and the full resentencing rule, the defendant was entitled to a remand and to seek further reductions of his prison term under recent legislation affecting other aspects of his conviction. (96 Cal.App.5th at pp. 568-569.) The court also held, although the defendant could seek additional sentencing relief on remand, if the trial court exercised its discretion to further reduce his sentence, the prosecution could withdraw its assent to the plea agreement. (Id. at pp. 565, 569, 572.) In so holding, Coddington determined that "[although the Legislature clearly intended that the striking of a sentencing enhancement for a prior prison term would not provide a basis for rescinding a plea agreement, this intent cannot be understood to govern other possible sentence reductions merely because they happen to occur during the same resentencing." (Id. at p. 565.) Coddington concluded the statute's intent to eliminate disparity of sentences and to promote uniformity of sentencing would be thwarted if prosecutors could not withdraw assent to a plea bargain for other changes reducing sentences that were part of a plea bargain. (Id. at p. 571.) It held, "[u]nder such an interpretation, prosecutors would have no Stamps remedy when a defendant is being resentenced, even though they would retain such a remedy for defendants being sentenced prospectively." (Ibid) It further reasoned, Senate Bill 483 was not "meant to overrule Stamps for all sentence reductions that are granted in connection with a request to eliminate prison priors." (Ibid.)
In People v. Carter (2023) 97 Cal.App.5th 960, the Fourth District Court of Appeal, Division One, also held the trial court erred in only striking the invalid prison prior enhancement and failing to conduct a full resentencing pursuant to section 1172.75, though the defendant was originally sentenced pursuant to a plea agreement that included a stipulated sentence of 12 years. (Carter, at pp. 964, 972.) However, disagreeing with Coddington and distinguishing Stamps, Carter further held the People were "not entitled to withdraw their assent to the plea bargain if the trial court further reduced [the defendant's] sentence on resentencing." (Carter, at p. 964; see id. at pp. 973-976.)
The Carter court concluded, like in Harris, the statement of intent in the uncodified portion of Senate Bill 483 "expressly mentions plea agreements and prohibits both the court and the prosecution from rescinding the plea agreement based on any change to the sentence resulting from the law." (People v. Carter, supra, 97 Cal.App.5th at p. 974.) It held "[t]he all-inclusive phrase 'any changes to a sentence as a result of the act' [Stats. 2021, ch. 728, § 1] can only be understood to include changes resulting from the law's resentencing provision, which provides for full resentencing and states that it 'shall result in a lesser sentence' unless it would endanger public safety and 'shall not result in a longer sentence than the one originally imposed.' (§ 1172.75, subd. (d)(1).)" (Id. at p. 973.) Carter reasoned, "[t]he statement of legislative intent in Senate Bill 483 does not differentiate between a sentence reduced by removal of the prison-prior enhancement and a sentence reduced due to other resentencing decisions made by the trial court. Instead, it broadly refers to 'any changes' to the sentence resulting under the new law and then states that those changes do not give the prosecution a right to withdraw from a plea agreement. (Stats. 2021, ch. 728, § 1.)" (Ibid) Accordingly, "the Legislature's clear directive is that any reduction of the defendant's sentence on resentencing shall not be a basis for the prosecutor or the court to withdraw from a plea agreement." (Ibid)
Carter further concluded the legislative history of Senate Bill 483 was consistent with its interpretation of the Legislature's intent. (People v. Carter, supra, 97 Cal.App.5th at p. 974.) It referenced the Assembly Committee on Public Safety's analysis of Senate Bill 483 that included a section titled "Effect on Guilty Pleas" in which it stated the "'legislative intent [is] that its provision for retroactive application and resentencing applies to guilty plea cases. This would include those in which there may have been a negotiated disposition.'" (Carter, supra, at p. 974; see Assem. Com. on Public Safety, Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended July 7, 2021, at p. 4.) Carter further explained:
"The report went on to quote the Supreme Court's holding in Doe v. Harris (2013) 57 Cal.4th 64, 66, 71, 73 that '"plea agreements are deemed to incorporate the reserve power of the state to amend the law"'; the fact that '"parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them"'; and it therefore follows '"that requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement."' (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) July 7, 2021, p. 4.) The committee's report also confirmed the 'Legislative intent that any changes to a sentence as a result of these provisions is not a basis for a prosecutor or [a] court to rescind a plea agreement.' (Id. at p. 2.) Like the uncodified statement, this language did not distinguish between the removal of prison priors and other potential sentence reductions.
"Several other legislative committee reports on Senate Bill 483 also noted the Legislature's intent to prohibit recission of a plea agreement based on any change in sentence resulting from the law. (See Sen. 3d reading on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended Sept. 1, 2021, p. 2 [the bill '[s]tates Legislative intent that any changes to a sentence as a result of these provisions is not a basis for a prosecutor or [a] court to rescind a plea agreement.']; Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended Sept. 1, 2021, p. 4 [same].)" (People v. Carter, supra, 97 Cal.App.5th at pp. 974-975.)
Carter noted that Coddington did not mention these legislative history reports but instead cited to the Legislative Counsel's Digest for Senate Bill 483 as stating "'that the legislation would declare prison priors "to be legally invalid" and would state the intent of the Legislature to prohibit the rescission of a plea agreement based on eliminating them.' (People v. Coddington, supra, 96 Cal.App.5th at pp. 571-572, italics added.)" (People v. Carter, supra, 97 Cal.App.5th at p. 975.) Carter explained, however, "the actual language of the Legislative Counsel's Digest is broader." (Ibid) It provides, consistent with the uncodified statement of intent and legislative committee reports, "'The bill would state the intent of the Legislature to prohibit a prosecutor or court from rescinding a plea agreement based on a change in sentence as a result of this measure.' (Legis. Counsel's Dig., Sen. Bill 483 (2021-2022 Reg. Sess.); Stats. 2021, ch. 728.)'" (Carter, at p. 975.) Carter also disagreed with Coddington that its holding would "overrule" Stamps, reasoning the statute at issue, section 1172.75, is distinct from that which was at issue in Stamps. (Carter, at p. 976.)
Multiple courts addressing the issue have since agreed with Carter that the Legislature intended to preclude a prosecutor from rescinding a plea agreement due to any sentence reduction at a section 1172.75 hearing, and the California Supreme Court recently granted review to address the issue. (See People v. Montgomery (2024) 100 Cal.App.5th 768, 775 [Ct. App., First Dist, Div. Three], review granted May 29, 2024, S284662; accord, People v. Hernandez (2024) 103 Cal.App.5th 981, 986 [Ct. App., Fourth Dist., Div. Three], petn. for review pending, petn. filed Aug. 22, 2024.)
III. Analysis
Defendant asserts the court erred in refusing to resentence him beyond striking his one-year prison prior. Accordingly, he contends the matter must be remanded for the court to conduct a full resentencing and, as the Carter court held, any additional reduction of the sentence on resentencing shall not be a basis for the People or the court to withdraw from the plea agreement. The People agree that, by its plain terms, section 1172.75 requires a full resentencing, not merely the striking of newly "invalid" enhancements. Accordingly, remand is required because the court was mistaken regarding the scope of its discretionary powers and the record does not clearly indicate it would have reached the same result if it had conducted a full resentencing. However, they contend, if the trial court alters the parties' plea agreement by further reducing the sentence beyond striking the prior prison term enhancement, the prosecution may withdraw from the plea agreement pursuant to People v. Stamps, supra, 9 Cal.5th 685. They contend the provision in the uncodified provision (§ 1) of Senate Bill 483 providing that "any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement," was included in the original version of the statute when "the only changes that could be made to a sentence under SB 483 were to strike prior prison term enhancements." They assert the statute was amended days later to state superior courts were directed to '"apply any other changes in law that reduce sentences or provide for judicial discretion' at resentencing" and "nothing in the subsequent legislative committee reports addressed the relationship between Section 1[of Senate Bill 483] and [section 1172.75,] subdivision (d)(2)."
Initially, we agree with the parties that remand is required for the court to conduct a full resentencing. As the parties acknowledge, on its face, section 1172.75 requires a full resentencing for prisoners whose sentences include a now invalid section 667.5 prior prison term enhancement, and the statute draws no distinction between individuals convicted by jury or plea. (See § 1172.75, subd. (d)(2) [requiring trial court 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"]; see also People v. Monroe (2022) 85 Cal.App.5th 393, 402 ["By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements"].) And, because the trial court was not aware of the scope of its discretionary powers, and the record does not clearly indicate the court would have reached the same conclusion had it been aware of its discretion, a remand for resentencing is appropriate. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 ['"Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, ... the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion'"].)
With regard to the parties' contentions regarding whether the People should be able to withdraw from the plea agreement if defendant's sentence is further reduced on remand, we note, "[a]s a general rule, we do not issue advisory opinions indicating '"what the law would be upon a hypothetical state of facts."'" (People v. Slayton (2001) 26 Cal.4th 1076, 1084.) And any opinion as to whether the People may withdraw from the plea agreement at this juncture would be purely advisory as it is conditioned upon whether the trial court hypothetically further reduces defendant's sentence on remand. (See People v. Chadd (1981) 28 Cal.3d 739, 746 ["We will not … adjudicate hypothetical claims or render purely advisory opinions"].) Accordingly, we decline to address the parties' contentions on this issue. Additionally, as noted, the high court is poised to resolve this issue in People v. Montgomery, supra, 100 Cal.App.5th 768, review granted.
DISPOSITION
The court's March 29, 2023, order is vacated and the matter is remanded for a resentencing hearing that complies with section 1172.75.
[*]Before Peña, Acting P. J., Meehan, J., and Snauffer, J.