Cain

Filed 12/8/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B342911 (Super. Ct. No. CR22297) Plaintiff and Appellant, (Ventura County)

v.

TRACY CAIN,

Defendant and Respondent.

Respondent Tracy Cain was sentenced to death in 1988. The People appeal a trial court order recalling, inter alia, the death penalty sentence pursuant to Penal Code section 1172.75. 1 We hold that the “full resentencing rule” (allegedly triggered because of a now invalid one-year prior prison term enhancement) does not provide an appropriate vehicle to achieve respondent’s stated goal of nullifying the previously imposed sentence of death. He may now seek modification of the determinate portion of the judgment which is insignificant.

All statutory references are to the Penal Code. Respondent also contends that the instant appeal is premature. We reject this contention because the order “affects” the substantial rights of the People. We hold that an order vacating a judgment of death necessarily affects the substantial rights of the People. As we shall…