Filed 10/25/16
                   CERTIFIED FOR PUBLICATION

     IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                  DIVISION SIX



THE PEOPLE,                                   2d Crim. No. B256146
                                           (Super. Ct. No. F209990001)
       Plaintiff and Appellant,             (San Luis Obispo County)
v.
RAUL ALBERTO LOPEZ,
       Defendant and Respondent.

THE PEOPLE                                    2d Crim. No. B263639
                                           (Super. Ct. No. F000210166)
       Plaintiff and Appellant,              San Luis Obispo County
v.
FREDDIE CHACON,
       Defendant and Respondent.



            A criminal defendant should not be punished for exercising a
constitutional right as declared by the United States Supreme Court.
Here, the defendants exercised their declared rights by obtaining
habeas corpus relief. They should not be precluded from obtaining
further relief pursuant to a subsequently enacted remedial statute
which addresses vindication of the same constitutional right. Were we
to do so, we would elevate form over substance. (Civil Code § 3528.)
            The People appeal from postjudgment orders granting
probation to respondents Raul Alberto Lopez and Freddie Chacon after
the trial court recalled their sentences pursuant to newly amended
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Penal Code section 1170, subdivision (d). In 1994, respondents were
sentenced to life without possibility of parole (LWOP) plus nine years
state prison for crimes they committed as juveniles. They served almost
a quarter of a century in prison. The People contend that the trial court
was without jurisdiction to recall the sentences after the LWOP
sentences were modified to simple life sentences in 2012 pursuant to
Graham v. Florida (2010) 560 U.S. 48, 82. The People seek refuge
under the plain meaning rule. We understand the People’s point but we
cannot, in good conscience, subscribe to the “‘dictionary school of
jurisprudence.’” (See, e.g., People v. Clayburg (2012) 211 Cal.App.4th
86, 91.) Application of the plain meaning rule would be unfair and
penalize respondents because they exercised their constitutional rights
as declared by the United States Supreme Court. We affirm.
                            Procedural History
             In 1993, respondents, who were 16 years old, were confined
in a California Youth Authority facility (CYA). They kidnapped a CYA
librarian, Ava Goldman, in an attempt to escape from the facility in
Paso Robles. Respondents took Goldman hostage and assaulted her.
Roy Victorino, a CYA instructor, tried to rescue Goldman and was
stabbed in the stomach and wrist with a shank. Respondents were
apprehended before leaving the facility.
             Respondents were charged with aggravated kidnapping and
related offenses. After waiver of jury, the trial court found them guilty
of inter alia, kidnapping for ransom with special findings that they
inflicted bodily harm, exposed the victim to a substantial likelihood of
death, and personally used a dangerous or deadly weapon. (§§ 209,
subd. (a); 12022.7; 12022, subd. (b).) It sentenced respondents to LWOP



         All further statutory references are to the Penal Code.
     1




                                      2
for aggravated kidnapping (§ 209, subd. (a)) plus a consecutive nine
years in state prison. Respondents appealed.
            In 1995, we vacated the convictions for attempted
kidnapping and false imprisonment. We stayed the sentence on the
escape, assault with deadly weapon, extortion, and false imprisonment
of a hostage counts (§ 654), and reduced the nine-year determinate
sentence to five years. We also provided that a five-year determinate
sentence was to be served before the LWOP sentence. (People v. Chacon
(1995) 37 Cal.App.4th 52, 58.)
            Habeas Petitions - Modification of LWOP Sentence
            In 2011 and 2012, respondents filed habeas petitions on the
theory that the Eighth Amendment barred the imposition of LWOP
sentences on juvenile offenders convicted of nonhomicide offenses.
(Graham v. Florida, supra, 560 U.S. at p. 82 (Graham).) The district
attorney agreed the LWOP sentences should be modified but argued
that respondents were presumptively ineligible for probation because a
deadly weapon was used. The trial court reduced the LWOP sentences
to life with possibility of parole. It denied probation.
            Respondents appealed, contending that the trial court
abused its discretion in not granting probation. In an unpublished
opinion (B238877/B241416), we affirmed on the theory that the trial
court could not split the sentence by granting probation on the
kidnapping count and imposing a determinate sentence on the other
counts. In footnote 5 of the opinion we noted that newly enacted section
1170, subdivision (d)(2) afforded respondents the right to file a petition
to recall the sentences.
                         Petitions to Recall Sentence
            In December 2013, Lopez filed a petition to recall his
sentence. (§ 1170, subd. (d)(2).) The district attorney argued that “the
ship has sailed on re-sentencing” because the LWOP sentence had
already been reduced to a life sentence. Overruling the objection, the
trial court recalled the entire sentence, sentenced Lopez to life plus five

                                     3
years, suspended execution of sentence, and granted five years
probation. The trial court warned “if you violate probation, you’re going
back to prison for life with possibility of parole. There’s no local time.
[¶] So I am imposing the original sentence but suspending [execution]
of it for five years of normal probation conditioned on your being [on]
good behavior. You are to obey all laws.”
              Chacon petitioned to recall his sentence on September 18,
2014. The district attorney opposed the petition on the theory that
section 1170, subdivision (d)(2) only applies to LWOP sentences.
Overruling the objection, the trial court recalled the sentence,
suspended imposition of sentence, and granted five years probation.
Chacon was released to Immigration and Customs Enforcement for
deportation to Mexico to live with his family. The trial court warned “if
you come back illegally, that would put you in violation and you know
what’s going to happen to you if you violate probation. [¶] You go right
back to prison for perhaps the rest of your life.”
                    Statutory Authority to Recall Sentence
              The People contend that the trial court was without
jurisdiction to recall the sentences because section 1170, subdivision
(d)(2) only provides for the recall of extant LWOP sentences. Because
this is a matter of statutory interpretation, our review is de novo.
(People v. Jones (2001) 25 Cal.4th 98, 103.) “Statutory construction
begins with the plain, commonsense meaning of the words in the
statute, ‘“because it is generally the most reliable indicator of legislative
intent and purpose.”’ [Citation.]” (People v. Manzo (2012) 53 Cal.4th
880, 885.) A statute is not to be read in isolation, but construed in
context and “‘with reference to the whole system of law of which it is a
part so that all may be harmonized and have effect. [Citations.]’
[Citation.]” (Landrum v. Superior Court (1981) 30 Cal.3d 1, 14.)
              Section 1170, subdivision (d)(2), enacted in 2012, provides a
“recall” procedure for juvenile LWOP sentences. It was enacted in
response to Graham which held that the imposition of a LWOP

                                      4
sentence on a juvenile offender convicted of a nonhomicide offense
violates the Eighth Amendment. (Assem. Comm. on Public Safety
Analysis of Sen. Bill No. 9 (2011-2012 Reg. Sess.) as amended May 27,
2011.) Section 1170, subdivision (d)(2)(A)(i) provides: “When a
defendant who was under 18 years of age at the commission of the
offense for which the defendant was sentenced to imprisonment for life
without the possibility of parole has served at least 15 years of that
sentence, the defendant may submit to the sentencing court a petition
for recall and resentencing.” (Italics added.)
            Here all the resentencing criteria were met, literally:
Respondents were under the age of 18 when they committed the kidnap;
they were sentenced to life without possibility of parole; and they served
at least 15 years of the sentence before petitioning for resentencing.
(§ 1170, subd. (d)(2)(A)(i).) This section uses the phrase “was
sentenced” and refers to the past. Thus, the literal and “plain meaning”
of the statute was satisfied. Respondents were sentenced to LWOP
terms. Nevertheless, the section appears to contemplate that an LWOP
term be in effect but the section does not expressly so indicate. The
People should not be hoist on their own “plain meaning” petard. We
doubt that the Legislature contemplated the situation where petitioners
obtained interim Graham relief before remedial legislation was enacted.
The section does not expressly speak to the presenting situation. It is
for the judiciary to “fill in the blank” and we commend the trial court for
doing so.
            The People argue that section 1170, subdivision (d)(2) does
not apply to a life sentence. As we have explained, modification of the
LWOP sentences because of the Graham opinion should not render
them ineligible for resentencing. If that were the rule, every juvenile
offender who exercised his/her Eighth Amendment right to modify a
LWOP sentence would be precluded from filing a section 1170,
subdivision (d)(2) petition for resentencing. In the words of the trial
court: “[I]t would be fundamentally unfair to deny [respondents] the

                                     5
benefit of the change in California law because [they] had already been
benefited by the decision made by the U.S. Supreme Court in the
Graham decision. Both [Graham and 1170, subdivision (d)(2)] were
based on the same rationale that juveniles grow up; they change; they
mature, and they should not be denied the opportunity at some point to
demonstrate that they can be productive citizens of society.” We agree
with the trial court’s articulated rationale and its common sense
appraisal of the case. In an appropriate case, the letter of the law
should gracefully and charitably succumb to the spirit of justice. (See
People v. Davis (1967) 55 Misc.2d 656, 659 [286 N.Y.S.2d 396, 400].)
            The fallacy of the People’s position is demonstrated by the
following hypothetical: If the trial court had denied relief in 2012,
respondents would have still been serving LWOP sentences. In that
event, there would be no impediment to the orders now under review.
Respondents did not make an election to seek Graham relief as opposed
to the subsequently enacted statutory petition to recall the LWOP
terms. They are not at fault at any stage of the post-conviction
appellate process.
            In the last appeal we noted that respondents could
theoretically benefit by reason of the newly enacted section 1170,
subdivision (d)(2). The People did not seek review and cite no authority
that respondents forfeited their statutory right to petition to recall the
sentences. “[W]hile an individual certainly may be penalized for
violating the law he just as certainly may not be punished for exercising
a protected statutory or constitutional right.” (United States v.
Goodwin (1982) 457 U.S. 368, 372.)
            Section 1170, subdivision (d)(2), does not expressly exclude a
defendant whose LWOP sentence was modified pursuant to Graham
before January 1, 2013, i.e., the effective date of Section 1170,
subdivision (d)(2). If the Legislature, in enacting section 1170,
subdivision (d)(2), intended to exclude defendants whose LWOP



                                    6
sentence were modified to cure an Eighth Amendment/Graham
sentencing error, it could have so provided.
                               Disposition
           The judgments (orders recalling life plus five year state
prison sentences and granting probation) are affirmed.
           CERTIFIED FOR PUBLICATION.


                                             YEGAN, J.

We concur:


             GILBERT, P. J.


             PERREN, J.




                                    7
                  Michael L. Duffy, Judge

         Superior Court County of San Luis Obispo

              ______________________________


           Dan Dow, District Attorney, Gregory J. Devitt,
Deputy District Attorney, for Plaintiff and Appellant.
           Mark R. Feeser, under appointment for
Defendant and Respondent, Raul Lopez.
           Sidley Austin, Jennifer N. Gaspar, Douglas A.
Axel, Christopher S. Munsey, Matt Light, and Jaime A.
Bartlett, for Defendant and Respondent, Freddie Chacon.
