BAKERSFIELD, Calif. (KGET) — A man who strangled his girlfriend’s 8-month-old son in Tehachapi will return to court for a new sentencing hearing to determine whether he gets a lesser punishment than his current sentence of life without parole.

Tobin Wayne Phillips, 26, is currently housed in a Soledad prison after a jury found him guilty of murder in the 2017 slaying of Baron Brian Smith. Phillips shook the baby so hard there was bleeding to the eyes. The child’s head hit a blunt object at least once and a nipple had been violently twisted.

It took between three to five minutes for Baron to die as Phillips strangled him, a prosecutor said at trial two years ago.

The 5th District Court of Appeal, in an opinion published Monday, ordered Phillips returned to Kern County because of a change to state law.

At the time Phillips was sentenced, judges presiding over cases where a defendant could be punished in different ways by different laws had to impose the punishment resulting in the longest prison term.

The law changed in 2021. Now judges have discretion as to which sentence the defendant should receive. In Phillips’ case, the lesser penalty would be 25 years to life.

Despite the change, Phillips’ prospects of getting resentenced to the lesser term don’t look good.

At Phillip’s October 2020 sentencing, Judge John W. Lua, noting the case’s brutality, said he would have given Phillips life without parole even if it wasn’t mandated by law.

“These are the types of crimes that are senseless crimes,” the judge said.