People v. Espinosa

majority opinion

Filed 8/31/26

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant, E085176

v. (Super.Ct.No. SWF029405)

OSCAR ENRIQUE ESPINOSA, OPINION

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Jeffrey M. Zimel, Judge.

Affirmed with directions.

Michael Hestrin, District Attorney, W. Matthew Murray, Deputy District

Attorney for Plaintiff and Appellant.

Laura Arnold under appointment by the Court of Appeal, for Defendant and

Respondent.

The Department of Corrections and Rehabilitation (the Department)

recommended to the trial court that it hold a hearing to consider compassionate release

for defendant and respondent Oscar Enrique Espinosa. (Pen. Code, § 1172.2, subd.

(a).) 1 The trial court conducted a hearing and recalled defendant’s prison sentence.

Plaintiffs and appellants the People of the State of California raise five issues on

appeal. First, the People contend the trial court erred by admitting hearsay regarding

defendant’s medical conditions. Second, the People assert the trial court erred by

allowing online testimony without the People’s consent. Third, the People contend the

trial court erred by not resentencing defendant after recalling his prison sentence.

Fourth, the People assert there is a clerical error in a minute order. Fifth, the People

contend the trial court erred by not imposing mandatory parole conditions. We affirm

with directions.

FACTUAL AND PROCEDURAL HISTORY

A. CONVICTIONS AND SENTENCE

Defendant was 75 years old when he committed his crimes in September 2009.

Defendant was convicted on three counts: (A) one count of engaging in sexual

intercourse or sodomy with a child who is 10 years old or younger (§ 288.7, subd. (a));

and (B) two counts of committing a lewd or lascivious act upon a child who is younger

than 14 years old (§ 288, subd. (a)). In 2010, the trial court sentenced defendant to

prison for a determinate term of 10 years and a consecutive indeterminate term of 25

years to life.

1 All subsequent statutory references will be to the Penal Code unless otherwise indicated.

B. MEDICAL PAROLE

In January 2023, defendant was released from custody on medical parole. 2

(§ 3550, subd. (a).) A defendant may be medically paroled if he is “permanently unable

to perform activities of basic daily living.” (§ 3550, subd. (a).) As part of releasing a

defendant on medical parole, the Department must “ensure that the prisoner has applied

for any federal entitlement programs for which the prisoner is eligible.” (§ 3550, subd.

(i); see also § 2065, subd. (c)(5)(A).) Federal entitlement programs include Medicare.

(42 U.S.C.A. §§ 426, 1395c, 1395k; Florida Ass’n of Rehabilitation Facilities, Inc. v.

State of Fla. Dept. of Health and Rehabilitative Services (2000 11th Cir.) 225 F.3d

1208, 1211.)

Upon his release, defendant began residing in a privately owned, noncustodial,

long-term care facility (the Facility). Despite the statutory requirement that the

Department ensure a Medicare application be filed for defendant, defendant remained

on the Department’s insurance. In other words, the Department funded defendant’s stay

at the Facility.

C. THE DEPARTMENT’S LETTER

In November 2024, the Department sent the trial court a letter recommending

compassionate release for defendant because he was “permanently medically

2 Unlike compassionate release, medical parole is conditional. If a defendant on medical parole happens to recover from their medical ailment, then the defendant can be returned to prison. (§ 3550, subd. (h).) By contrast, defendants granted compassionate release are “resentence[d] ... to serve their sentences outside prison.” (People v. Loper (2015) 60 Cal.4th 1155, 1160 (Loper).)

incapacitated.” The Department’s letter represented that defendant was 90 years old

and had been residing in the Facility since January 2023. Defendant required assistance

with feeding, bathing, dressing, using the restroom, and moving from the bed to a chair.

The Department explained that defendant “had a stroke which resulted in significant

weakness” and he was suffering from dementia.

A report of defendant’s recent medical history (the Report), was included with

the letter. The Report was signed by two doctors employed by the Department:

(1) Thomas Bui, M.D., Physician and Surgeon, and (2) Michele DiTomas, M.D.,

Assistant Deputy Medical Executive.

A packet of documents was attached to the Report. The packet included a

postrelease plan for defendant, which states in its entirety: “Should [defendant] receive

a[] recall of sentence, he will be supported in completing [an] application for Medi-Cal

and other social services and discharged to a supportive setting that can meet his

medical needs.” According to the People, the Department was seeking compassionate

release for defendant because the Department’s contract with the Facility was ending.3

3 On appeal, the People contend that “releasing [defendant] presents significant cost savings for [the Department].” We presume the Department sought compassionate release for defendant because the Department had failed to apply for Medicare for defendant when he was released on medical parole (§§ 2065, subd. (c), 3550, subd. (i)), which resulted in the Department continuing to pay for defendant’s care, and it no longer wanted to pay for his care. (People v. Multani (2024) 106 Cal.App.5th 1334, 1346-1347 [“[S]aving on health care costs in prisons was a legislative purpose of the statute enacting the original compassionate release provisions in 1997, and of a 2007 amendment that extended eligibility to medically incapacitated prisoners”].)

D. OPPOSITION

The People opposed compassionate release for defendant. The People asserted

the Report was replete with hearsay. The People attacked the Report for failing to

identify the original source of the medical history conveyed by Dr. Bui. For example,

the Report did not indicate whether Dr. Bui examined defendant or read defendant’s

medical charts. The People contended compassionate release should be denied because

defendant failed to meet his burden of demonstrating, with admissible evidence, that he

meets the medical criteria for compassionate release. The trial court overruled the

People’s hearsay objection.

E. HEARING

1. TESTIMONY

Dr. Faiza Rading (Rading) is a physician employed by the Department; she

testified at defendant’s compassionate release hearing. Rading is the chief of palliative

care in the Sacramento area. Palliative care is “care that is given to patients who have

chronic serious illnesses.” Rading reviewed defendant’s medical records and records

from the Facility, but she did not examine defendant. Department doctors do not have

privileges to examine patients in the Facility.

Over the People’s ongoing hearsay objection, Rading testified that defendant

suffered a stroke and was diagnosed with advanced dementia. Rading further testified,

“I can say that from my discussion with the nursing staff, his movement is pretty

limited. He needs a lot of assistance.” When asked for more detail, Rading explained,

“So according to my discussion with nursing, he—when he’s getting out of bed and into

his chair, he needs assistance because his legs can fail and he’s frail. He needs

assistance with dressing. He needs assistance with shower[ing]. He can use a walker,

but he needs somebody to assist him. And when he’s in a wheelchair, he needs an

attendant to push him around in his wheelchair. [¶] He also—he can feed himself, but

he needs assistance with getting the food set up for him and also prompting ... you really

need to prompt him ... for him to accomplish [activities].”

For defendant’s postrelease reentry plan, Rading explained that the Department

had “been trying to reach out to different [assisted living] facilities to accept him,” but

assisted living facilities would not commit to reserving a bed for defendant until they

knew whether defendant would be released and when he would be released.

In regard to insurance, Rading testified that the Department needed to procure

Medi-Cal coverage for defendant to pay for the assisted living facility upon his release.

Defendant’s attorney asked Rading, “And you said the issues are—one of them is

getting Medi-Cal—getting him signed up for Medi-Cal. That can’t happen until he’s—

he’s granted this release? [¶] Can you describe that?” Rading replied, “[Medi-Cal]

can’t be granted until he gets released. We can apply for Medi-Cal, but Medi-Cal does

not become active until they leave [the Department].”

When cross-examined by the People, Rading testified that, to her knowledge, Dr.

Bui did not examine defendant, and she did not know if Dr. DiTomas examined

defendant. After Rading’s testimony, the People moved to strike her testimony because

she “did not testify to anything that is in her personal knowledge ... , her testimony was

entirely based on multiple layers of hearsay.” The trial court denied the motion.

2. PEOPLE’S EXHIBIT

The People moved the court to admit medical records and care records from

defendant’s time at the Facility. The trial court admitted the records (Exhibit No. 1),

which reflect defendant required assistance with eating, bathing, dressing, using the

restroom, moving from lying to sitting, and moving from sitting to standing.

3. ARGUMENT REGARDING MEDICAL PAROLE

The People asserted the trial court should deny compassionate release for

defendant because defendant was already on medical parole and thus no longer

incarcerated. Defendant’s attorney asserted defendant could be granted compassionate

release despite being on medical parole because a parolee “is still subject to

supervision.”

4. RULING

As to the issue of defendant being on medical parole, the trial court found

“[defendant] is serving a sentence in the Department of Corrections. And the fact that

he’s being housed in a nursing home, outside of an actual prison facility, I don’t think

changes the fact that he is serving a sentence and is incarcerated.”

The trial court found defendant was medically incapacitated and that he met the

criteria for compassionate release. The trial court said, “The Court will order that the

application for recalling and resentencing pursuant to 1172.2 is granted. [The

Department] is ordered to assist the defendant in obtaining Medi-Cal and other social

services. [The Department] is ordered to release the defendant within 30 days to a

location where access to care is available.”

The People asserted the trial court had to resentence defendant. The trial court

asked the People, “And so what do you recommend?” The People replied, “Something

that falls within what the statute describes.” The trial court said, “At this time, I’m just

going to order that he be released.”

The People asked, “Is the Court ordering him to be on parole?” The court

responded, “I’m not.” It remarked that in typical criminal cases, the trial court does not

decide whether a defendant receives parole—that decision is made by the Department.

The trial court said, “So I’m not going to order that the defendant be placed on parole.

I’m going to leave that determination to the Department of Corrections.”

DISCUSSION

A. HEARSAY

The People contend the trial court erred by overruling their hearsay objections to

the Report and Rading’s testimony.

1. STANDARD OF REVIEW

When reviewing a trial court’s ruling on a hearsay objection, “[w]e review the

trial court’s conclusions regarding foundational facts for substantial evidence.

[Citation.] We review the trial court’s ultimate ruling for an abuse of discretion

[citations], reversing only if ‘ “the trial court exercised its discretion in an arbitrary,

capricious, or patently absurd manner that resulted in a manifest miscarriage of

justice.” ’ ” (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)

2. A COMPASSIONATE RELEASE HEARING IS A SENTENCING

HEARING

The compassionate release statute directs the trial court to consider whether the

defendant is suffering from a medical “incapacitation [that] did not exist at the time of

the original sentencing” (Pen. Code, § 1172.2, subd. (b)(2)), and “[i]f possible, the

matter shall be heard before the same judge of the court who sentenced the incarcerated

person.” (Pen. Code, § 1172.2, subd. (j).) The sentencing judge is the most appropriate

judge to hear the matter because the application for compassionate release is akin to a

motion for reconsideration of a defendant’s sentence (Code Civ. Proc., § 1008).

Specifically, the sentencing judge is asked to reconsider the defendant’s sentence in

light of new evidence of the defendant’s medical condition. (Pen. Code, § 1172.2, subd.

(b).) Thus, a hearing on compassionate release falls within the procedural realm of

sentencing hearings. (See People v. Sledge (2017) 7 Cal.App.5th 1089, 1095

[Proposition 47 eligibility hearings are a type of sentencing proceeding]; People v.

Saelee (2018) 28 Cal.App.5th 744, 756 [“Nothing in Proposition 64 suggests the

applicable rules of evidence are any different than those which apply to other types of

sentencing proceedings”].)

Reliable hearsay, such as that often contained in probation reports, is allowed at

sentencing hearings. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755; People v.

Sledge, supra, 7 Cal.App.5th at p. 1095; People v. Del Rio (2023) 94 Cal.App.5th 47,

56-57; see also Sears v. Upton (2010) 561 U.S. 945, 950, fn. 6; Williams v. People of

State of N.Y. (1949) 337 U.S. 241, 246-247.) The question, therefore, is not whether the

Report and Rading’s testimony included hearsay, but whether the hearsay was reliable.

3. THE REPORT

a. Error

In determining whether hearsay is reliable, it is critical to identify the original

source of the information. (People v. Reed (1996) 13 Cal.4th 217, 230; People v. Banda

(2018) 26 Cal.App.5th 349, 357-358; see also People v. Kershaw (1983) 147

Cal.App.3d 750, 756 [“[I]nformation from anonymous sources is inherently

unreliable”].) The Report fails to identify the original source for the hearsay regarding

defendant’s medical history. Because it is unclear from whom or what the information

in the Report was sourced, the Report is unreliable hearsay and should not have been

considered.

Defendant asserts the Report fell within the public records exception to the

hearsay rule. (Evid. Code, § 1280.) There are three foundational requirements for that

exception to apply: (1) “The writing was made by and within the scope of duty of a

public employee;” (2) “The writing was made at or near the time of the act, condition,

or event;” and (3) “The sources of information and method and time of preparation were

such as to indicate its trustworthiness.” (Evid. Code, § 1280; see also Lake v. Reed

(1997) 16 Cal.4th 448, 467.)

The Report is signed by (1) Thomas Bui, M.D., Physician and Surgeon, and

(2) Michele DiTomas, M.D., Assistant Deputy Medical Executive. Neither testified at

the hearing. Rading testified that she did not know whether Bui and DiTomas examined

defendant, and that the Department’s doctors did not have privileges to examine patients

at the Facility where defendant was residing. In short, no foundation was laid for “[t]he

sources of information” so “as to indicate ... trustworthiness,” as required for the public

records exception. (Evid. Code, § 1280, subd. (c).)

Defendant asserts that the packet of documents attached to the Report is

sufficient evidence of the Report’s trustworthiness. The documents in the packet also

contain hearsay. Important to this analysis is the public records exception rule that

“trustworthiness may be established by showing that a written report is based on the

observations of a public employee who has a duty to observe the events and to report

and record them accurately.” (People v. Orey (2021) 63 Cal.App.5th 529, 551-552.)

One document in the packet is on the Department’s letterhead and is titled

“Diagnostic Study and Evaluation Report” (all caps and boldface omitted). It includes a

paragraph about defendant’s medical conditions, with the sources for the paragraph

being (1) the Report and (2) staff at the Facility who observed defendant losing a

significant amount of weight over several months. There is no indication that the

government employees involved in drafting the “Diagnostic Study and Evaluation

Report” personally observed or examined defendant. Thus, the “Diagnostic Study and

Evaluation Report” is also hearsay that fails to meet the foundational requirements for

the public records exception. As a result, we are not persuaded that it establishes the

Report’s trustworthiness.

In sum, a proper foundation was not laid for finding either (1) that the Report

was reliable hearsay, or (2) that the Report fell within the public records exception to

the hearsay rule (Evid. Code, § 1280). The Report was not admitted as an exhibit, but

the trial court said it considered the Report. By considering the Report over the

People’s objection, the trial court erred.

b. Harmless Error

The People do not present an argument regarding prejudice. (Cal. Const., art. VI,

§ 13 [prejudice is required for reversal]; Code Civ. Proc., § 475 [there is no presumption

of prejudice].) Despite that omission, we will examine whether the error was

prejudicial.

One way in which to meet the medical criteria for compassionate release is to be

“permanently medically incapacitated with a medical condition or functional

impairment that renders [the defendant] permanently unable to complete basic activities

of daily living, including, but not limited to, bathing, eating, dressing, toileting,

transferring, and ambulation.” (§ 1172.2, subd. (b)(2); Cal. Code Regs., tit. 15,

§ 3999.209(b)(2).)

On the People’s motion, the trial court admitted Exhibit No. 1 (the Facility’s

records), which included records from the Facility concerning the level of care the

Facility provided to defendant. The Facility’s records reflect that defendant required

assistance with eating, bathing, dressing, using the restroom, moving from lying to

sitting, and moving from sitting to standing. The hearsay in the Report included,

“[Defendant] is unable to transfer independently and needs caregivers’ assistance with

all activities of daily living.” Because the Facility’s records confirm the hearsay in the

Report, the error is harmless. The People’s evidence and the Report both reflect that

defendant is medically incapacitated.

Although the People did not raise a prejudice argument in their appellate briefs,

during oral argument in this court the People asserted they would not have moved to

admit the Facility’s records but for the trial court considering the Report. According to

the People, without the Facility’s records, Rading’s testimony would have been the only

evidence in the case, and the People assert her testimony was riddled with inadmissible

hearsay, thus leaving little admissible evidence.

As explained ante, reliable hearsay is admissible at sentencing hearings. (People

v. Lamb (1999) 76 Cal.App.4th 664, 683; People v. Arbuckle, supra, 22 Cal.3d at p.

754.) Indicators of reliability “include the circumstances surrounding the making of the

statement, if known, such as spontaneity and consistent repetition, the mental state of

the declarant, ... lack of motive to fabricate, and whether the hearsay statement was

corroborated.” (People v. Otto (2001) 26 Cal.4th 200, 211.)

Rading identified a primary source of her hearsay testimony as nursing staff at

the Facility. Rading testified, “I can say that from my discussion with the nursing staff,

his movement is pretty limited. He needs a lot of assistance.” When asked, “Can you

describe the assistance that is needed for him?” Rading testified, “So according to my

discussion with nursing, he—when he’s getting out of bed and into his chair, he needs

assistance because his legs can fail and he’s frail. He needs assistance with dressing.

He needs assistance with shower[ing]. He can use a walker, but he needs somebody to

assist him. And when he’s in a wheelchair, he needs an attendant to push him around in

his wheelchair.”

Further, Rading testified that she is employed by the Department and works as

“the chief physician of surgery for palliative and complex care in Sacramento.” Rading

“reviewed the medical records for [defendant]. [She] reviewed the [Facility’s]

documents that were sent regarding his functional capacity. [She] reviewed the doctors’

notes. [She] reviewed his hospital notes when he was still within [the Department].

[She] reviewed X-rays and labs.”

Rading was cross-examined about exactly what documents she reviewed.

Rading said she reviewed defendant’s admission record for the Facility; notes by Doctor

Anwar, who sees patients at the Facility; x-rays of defendant’s head from when

defendant was still in prison; and lab results, which were sent by the Facility.

Rading’s position within the Department and the various identified sources of

information she had about defendant, e.g., Facility nursing staff and hospital notes,

indicate that the hearsay she provided was reliable. All the hearsay was sourced from

statements and writings by medical professionals, e.g., nursing staff, who, as part of

their profession, observed defendant and reported their observations to Rading. The

hearsay was consistent in concluding that defendant needed assistance with daily tasks.

Rading and the various declarants did not have a motive to lie for defendant’s benefit.

Thus, even if the People had not presented the Facility’s records, Rading’s testimony

was admissible as reliable hearsay. Thus, the error in considering the Report was not

prejudicial.

4. RADING’S TESTIMONY

The People contend the trial court erred by overruling their hearsay objections to

Rading’s testimony. The trial court could reasonably find Rading’s hearsay testimony

to be reliable for the reasons set forth ante. Accordingly, the trial court did not err.

B. ONLINE TESTIMONY

1. SECTION 977.3

Section 977.3 provides, “A witness may testify in any misdemeanor or felony

criminal proceeding, except for felony trials, through the use of remote technology with

the written or oral consent of the parties on the record and with the consent of the court.

The defendant shall waive the right to have a witness testify in person on the record and

may withdraw this waiver at any time upon finding of good cause.”

2. PROCEDURAL HISTORY

In the trial court, the People announced that they did not consent to Rading

testifying via Zoom. The following exchange occurred:

“The Court: Okay. So your objection is to the use of the remote technology?

“[The People]: Correct.

“The Court: Okay. And what is the grounds?

“[The People]: I don’t need any grounds, your Honor.

“The Court: Okay.

“[The People]: It’s—if you read—

“The Court: And you also, then, admit that you don’t have any grounds?

“[The People]: I do have grounds.

“The Court: Okay. Would you like to state those for the record?”

The People said, “I do not stipulate. That is sufficient.” Nevertheless, the People

also said that, in a hearing in a different defendant’s case, it appeared to the People that

“Rading was, in fact, not testifying from her own personal knowledge. But she was

reading documents that could not be seen on camera.”

Defendant’s attorney asserted that, per statute, a compassionate release hearing

must take place within 10 days of the trial court receiving the Department’s letter

recommending a compassionate release hearing for a particular defendant. (§ 1172.2,

subd. (c).) Defendant’s attorney contended that, given the deadline, the Department’s

doctors appear “on Zoom because that is the only way that we can try to get [the

hearings] done within ten days.”

The trial court permitted Rading to testify via Zoom. On cross-examination, the

People asked, “Ma’am, I noticed that you looked off the screen just now. Are you

referring to notes?” Rading replied, “No.”

3. ANALYSIS

The People contend the trial court erred by permitting Rading to testify via Zoom

without the People’s consent. (§ 977.3.) For the sake of judicial efficiency, we will

assume, without deciding, that the trial court erred. The People failed to present an

argument as to how they were prejudiced by Rading’s testimony occurring via Zoom.

(Cal. Const., art. VI, § 13 [prejudice is required for reversal]; Code Civ. Proc., § 475

[there is no presumption of prejudice].) Therefore, the People forfeited the issue.

(People v. Reardon (2018) 26 Cal.App.5th 727, 740-741.)

C. RESENTENCING

The People contend the trial court erred by not resentencing defendant after

recalling his prison sentence.

Recalling a sentence and resentencing a defendant are separate procedural steps.

(Dix v. Superior Court (1991) 53 Cal.3d 442, 455-456, 464.) Throughout the

compassionate release statute, the phrase “recall and resentencing” is used. (§ 1172.2,

subds. (b), (d)-(g), (j), (l)-(m), (p)(1) & (p)(4).) This plain language reflects that the

Legislature intended a two-step process to occur: if a defendant’s sentence is recalled,

then the trial court needs to resentence the defendant. (See Loper, supra, 60 Cal.4th at

p. 1160 [“Compassionate release was first authorized by statute in 1997 when the

Legislature added new subdivision (e) to section 1170, permitting trial courts to recall

the criminal sentences of terminally ill prisoners and resentence them to serve their

sentences outside prison”].) The trial court erred by failing to conduct the second step

of the process—resentencing.

Defendant asserts the trial court did not err because the trial court effectively

vacated defendant’s sentence. We agree that the trial court vacated defendant’s

sentence, but vacating the sentence does not satisfy the statutorily required second step

of resentencing. (§ 1172.2, subds. (b), (d)-(g), (j), (l)-(m), (p)(1) & (p)(4).)

The People assert they suffered prejudice because the case is “in procedural

limbo,” due to the lack of a sentence. It is difficult to evaluate this prejudice argument

because the record does not indicate if the case is, indeed, in procedural limbo. The

People failed to make a record as to what it would mean for defendant to not be

sentenced. (People v. Clifton (1969) 270 Cal.App.2d 860, 862 [appellant bears the

burden of providing a record demonstrating reversible error].) For example, it is

possible defendant remains on medical parole due to the lack of a new sentence. It is

also possible that defendant was deported.

We need not decide whether the People were prejudiced, however, because

sentencing and resentencing are critical steps in a criminal case (People v. Cutting

(2019) 42 Cal.App.5th 344, 348), and a trial court is obligated to pronounce judgment

on a convicted defendant (People v. Blackman (1963) 223 Cal.App.2d 303, 307; §§

1191, 1202). Accordingly, we will direct the trial court to resentence defendant.

(People v. Cheffen (1969) 2 Cal.App.3d 638, 642 [“[T]he resulting posture of the case is

that no judgment has been pronounced with respect to the counts on which a conviction

was validly obtained. We do have the power, however, to remand the case under the

circumstances for the purpose of the pronouncement of a judgment in accordance with

the verdict of the jury on the valid convictions”].)

At oral argument in this court, defendant asserted that the only sentence the trial

court could legally impose upon defendant is prison for 25 years to life as required by

section 288.7, subdivision (a), for the offense of sexual intercourse or sodomy with a

child. We disagree.

The compassionate release statute provides, “If the court grants the recall and

resentencing application, the incarcerated person shall be released by the department

within 48 hours of receipt of the court’s order, unless a longer time period is agreed to

by the incarcerated person. At the time of release, the warden or the warden’s

representative shall ensure that the incarcerated person has each of the following in their

possession: a discharge medical summary, full medical records, state identification,

parole or postrelease community supervision medications, and all property belonging to

the incarcerated person. After discharge, any additional records shall be sent to the

incarcerated person’s forwarding address.” (§ 1172.2, subd. (l), italics added.) The

plain language of the statute indicates that a defendant granted compassionate release

will be placed on either parole or postrelease community supervision (PRCS).

Our Supreme Court has explained, “Compassionate release was first authorized

by statute in 1997 when the Legislature added new subdivision (e) to section 1170,

permitting trial courts to recall the criminal sentences of terminally ill prisoners and

resentence them to serve their sentences outside prison.” (Loper, supra, 60 Cal.4th at p.

1160, italics added.) The Supreme Court’s decision implies that a defendant will be

placed on either parole or PRCS in order to serve his sentence outside of prison.

A divided panel of this court has previously held, “[A] defendant who is

resentenced in order to effect a compassionate release may be subject to parole or

postrelease community supervision.” (People v. Torres (2020) 48 Cal.App.5th 550,

562.) Moreover, Rading, who works for the Department, testified, “But my

understanding is that he’s going to be on parole. So when we find a place, typically we

run it—we consult with a parole agent to make sure that that housing is appropriate.”

Thus, the evidence in the case also indicates that a defendant granted compassionate

release will be placed on either parole or PRCS.

Section 1172.2, subdivision (l), Loper, Torres, and the evidence in this case

support the conclusion that a grant of compassionate release should result in defendant

being placed on either parole or PRCS. Unfortunately, the compassionate release

statute (§ 1172.2) is vague as to how a trial court should go about reformulating a

defendant’s sentence. Thankfully, there is another statute that is helpful on this

subject—the general resentencing statute (§ 1172.1).

“ ‘ “It is an established rule of statutory construction that similar statutes should

be construed in light of one another [citations], and that when statutes are in pari materia

similar phrases appearing in each should be given like meanings. [Citations.]”

[Citation.]’ [Citation.] ‘ “Statutes are considered to be in pari materia when they relate

to the same person or thing, to the same class of person[s or] things, or have the same

purpose or object.” ’ ” (Neville v. County of Sonoma (2012) 206 Cal.App.4th 61, 76;

see also Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1090-1091.)

The compassionate release statute (§ 1172.2) and the general resentencing law

(§ 1172.1) are located together in the same statutory article of the Penal Code entitled

“Recall and Resentencing,” and both statutes were once subdivisions of section 1170.

The compassionate release statute (§ 1172.2) was formerly section 1170, subdivision

(e). The general resentencing law (§ 1172.1), which authorizes resentencing of a

defendant upon a recommendation from one of the enumerated government bodies, was

formerly section 1170, subdivision (d). (Loper, supra, 60 Cal.4th at p. 1165.)

In Loper, our Supreme Court observed that the compassionate release law is

similar to the general resentencing law: “Section 1170(d) [the general resentencing law]

is superficially similar to section 1170(e) [the compassionate release law], the section at

issue in this case, in that both laws authorize a trial court to recall a prisoner’s criminal

sentence previously imposed; while section 1170(e) permits the trial court to recall a

criminal sentence for medical reasons, section 1170(d) is a more general statute and

‘permits recall and resentencing for any otherwise lawful reason.’ ” (Loper, supra, 60

Cal.4th at p. 1165.)

The two statutes have continued to be placed together, as complementary

subdivisions and then statutes. The statutes are in pari materia because they are both

focused on recall of criminal sentences and resentencing of defendants. Reading the

statutes together is necessary to give effect to the Legislature’s repeated use of the term

“recall and resentencing” in section 1172.2 and to harmonize the two statutes. (See

People v. Johnson (1995) 33 Cal.App.4th 623, 631-632 [discussing harmonizing in pari

materia statutes].) Accordingly, we read “resentencing” in the compassionate release

statute (§ 1172.2) to have the same meaning as it does in the general resentencing

statute (§ 1172.1), which is as follows: “The resentencing court may, in the interest of

justice and regardless of whether the original sentence was imposed after a trial or plea

agreement, do the following:

“(A) Reduce a defendant’s term of imprisonment by modifying the sentence.

“(B) Vacate the defendant’s conviction and impose judgment on any necessarily

included lesser offense or lesser related offense, whether or not that offense was charged

in the original pleading, with the concurrence of the defendant, and then resentence the

defendant to a reduced term of imprisonment.” (§ 1172.1, subd. (a)(3).)

Thus, one resentencing option the trial court could select is vacating defendant’s

conviction(s) and imposing judgment on a lesser offense/offenses (§ 1172.1, subd.

(a)(3)(B)) to cause defendant’s sentence to be less than or equal to defendant’s time

served (§ 1170, subd. (a)(3)). At that point, “the entire sentence shall be deemed to

have been served” (§ 1170, subd. (a)(3)), and defendant could be placed on parole or

PRCS (§ 1170, subd. (a)(3)). 4 We leave the resentencing of defendant to the trial

court’s discretion.

D. CLERICAL ERROR

1. MINUTE ORDER TEXT

The minute order from defendant’s compassionate release hearing reads,

“Recall of Sentence pursuant to Penal Code section 1170(e)[ 5] is granted,

“Pursuant to Penal Code 1170(e), court orders the sentence imposed on 10/29/2010

recalled in its entirety.

“State Prison sentence previously imposed is vacated as to all counts. [¶] … [¶]

“Count(s) 1-3 dismissed in the interest of justice. (1385 PC)”

4 At oral argument in this court, defendant asserted it would be a waste of taxpayer dollars for defendant, who is medically incapacitated, to be supervised on parole or PRCS. While we appreciate the policy argument, it would be better directed to the Legislature.

5 Section 1170, subdivision (e), provides, “[T]he court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.”

2. ANALYSIS

The People contend the minute order from defendant’s compassionate release

hearing incorrectly reflects that the trial court dismissed the case in the interest of justice

(§ 1385). “ ‘[W]hether the recitals in the clerk’s minutes should prevail as against

contrary statements in the reporter’s transcript, must depend upon the circumstances of

each particular case.’ ” (People v. Smith (1983) 33 Cal.3d 596, 599.)

When discussing the postrelease plan and where defendant would reside if

granted compassionate release, the trial court said, “Well, he’s still a 290 registrant, and

those rules would apply to him.” At the end of the compassionate release hearing, the

trial court said, “All right. So I’m not going to order that the defendant be placed on

parole.· I’m going to leave that determination to the Department of Corrections.” The

trial court’s comments reflect that defendant would remain convicted of the charges in

this case. The trial court did not state that it dismissed the case under section 1385.

Therefore, we conclude that the minute order is erroneous. We will direct the trial court

to correct the minute order to delete the line about the charges having been dismissed.

E. MANDATORY PAROLE TERMS

The People contend the trial court erred by failing to impose mandatory terms of

parole. The People do not address the fact that defendant was already on medical parole

at the time of the December 5, 2024, compassionate release hearing. (§ 3550, subd. (h)

[conditions of medical parole]; Cal. Code Regs., tit. 15, § 3359.5 [same].)

While trial courts impose probation conditions (§ 1203.1, subd. (a)), it is the

Board of Parole Hearings (the Board) that imposes conditions of parole (§§ 3052, 3053,

subd. (a); Cal. Code Regs., tit. 15, §§ 2510, 2512, 2513). Because the authority to set

the conditions of parole “is vested in the Board, not the courts” (Kevin R. v. Superior

Court (2010) 191 Cal.App.4th 676, 684), “[i]ntrusions by the judiciary into the

executive branch’s realm of parole matters may violate the separation of powers” (In re

Prather (2010) 50 Cal.4th 238, 254-255). Accordingly, the trial court did not err by not

imposing parole conditions. However, the trial court does have authority to order

defendant placed on either parole or PRCS. (§ 1170, subd. (a)(3).)

DISPOSITION

The order is affirmed. The trial court is directed to resentence defendant and

correct the December 5, 2024, minute order to delete the line “Count(s) 1-3 dismissed in

the interest of justice. (1385 PC).”

CERTIFIED FOR PUBLICATION

MILLER

Acting P. J.

We concur:

CODRINGTON

FIELDS

People v. Espinosa

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Opinion · public domain