Opinion
E082942
12-23-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANDREW ESPARZA, Defendant and Appellant.
William Paul Melcher, under the appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Collette C. Cavalier, Alana Butler, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. SWF10001676. John D. Molloy, Judge. Affirmed with directions.
William Paul Melcher, under the appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Collette C. Cavalier, Alana Butler, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
Defendant and appellant Robert Andrew Esparza appeals from the trial court's order denying a recall and resentencing of defendant's sentence under Penal Codesection 1172.75. We affirm.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
On our own motion, we take judicial notice of this court's opinion from defendant's appeal of the judgment in People v. Esparza (Aug. 16, 2013, E055493) (nonpub. opn.) (Esparza). (Evid. Code, § 459.)
On December 13, 2011, a jury found defendant guilty of attempted involuntary manslaughter (§§ 664 and 192, subd. (a), count 1); shooting at an inhabited dwelling (§ 246, count 2); possession of a firearm by a convicted felon (§ 12021, subd. (a)(1), count 3); and criminal street gang activity (§ 186.22, subd. (a), count 4). The jury additionally found defendant personally discharged a firearm in his commission of the manslaughter offense (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)); personally used a firearm in his commission of the shooting offense (§ 1192.7, subd. (c)(8)); and committed both the manslaughter and shooting offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). (Esparza, supra, E055493.)
On January 20, 2012, the trial court sentenced defendant to an aggregate sentence of 95 years to life, plus five years. The court imposed but struck punishment on the prior prison term enhancement. (Esparza, supra, E055493.)
As we noted at oral argument, we mistakenly indicated in our tentative opinion that the court had stayed punishment on the prior prison term enhancement. Although the abstracts of judgment reflect that the court stayed punishment on the enhancement, the sentencing minute order and the reporter's transcript of the sentencing hearing reflect that the court struck punishment on the enhancement. (People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment.].)
Defendant appealed. By opinion filed August 16, 2013, this court affirmed defendant's convictions but ordered that imposition of sentence on count 4 be stayed under section 654. (Esparza, supra, E055493.)
On remand, on November 8, 2013, the trial court resentenced defendant to 70 years to life plus five years in state prison.
In our tentative opinion, we mistakenly indicated that the resentencing court had stayed punishment on the prior prison term enhancement. In point of fact, the resentencing court never expressly mentioned the prior prison term enhancement. Instead, the court noted that it would "simply re-sentence [defendant] on Count 4 leaving all other counts intact. It would not be the Court's intention to change any of the other impositions of sentence." "All other orders made at sentencing remain in full force and effect. All other terms previously stated also will remain as to the sentencing." Thus, it is clear that the resentencing court's intention was to retain the stricken punishment on the prior prison term enhancement.
On December 21, 2023, at a hearing for recall and sentencing under section 1172.75, the trial court struck the prior prison term enhancement. The court, however, determined that defendant was ineligible for full resentencing.
A trial court may either impose or strike sentence on a prior prison term enhancement, any other sentence is unauthorized. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 ["Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken."]; People v. Saldana (2023) 97 Cal.App.5th 1270, 1275 (Saldana), review granted Mar. 12, 2024, S283547; People v. Thomas (2013) 214 Cal.App.4th 636, 640 ["Generally, the failure to impose a mandatory enhancement or strike it . . . is a jurisdictional error ...."].) "If a judge strikes the enhancement, it's as if the fact of the enhancement never existed-it will not remain on the defendant's criminal record nor will it affect them in any potential future sentencing." (People v. Flores (2021) 63 Cal.App.5th 368, 383.) The problem in part is the use of the word "strike." It would be more precise and in keeping with the language in California Supreme Court opinions to state that the enhancement is "vacated." (See, e.g., People v. Morelos (2022) 13 Cal.5th 722, 770.) If the enhancement itself is vacated, it should not appear on the abstract of judgment.
DISCUSSION
1. DEFENDANT WAS NOT ENTITLED TO A FULL RESENTENCING HEARING UNDER SECTION 1172.75
On appeal, defendant contends that "[a]fter striking from [defendant's] sentence a prior prison enhancement imposed pursuant to section 667.5, subdivision (b), the court erred by determining [defendant] was not entitled to resentencing proceedings under section 1172.75." The People, however, contend that defendant "was not entitled to a full resentencing hearing because his section 667.5 prison prior enhancement was imposed and stayed, rather than imposed and executed." (All caps omitted.)
Former section 667.5, subdivision (b), required the imposition of a one-year enhancement for each true finding of a separate prior prison or county jail time a defendant served, unless the defendant remained free of custody for at least five years. (§ 667.5, former subd. (b); People v. Renteria (2023) 96 Cal.App.5th 1276, 1282 (Renteria); People v. Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings).) The Legislature, however, amended section 667.5, subdivision (b), in Senate Bill No. 136 (effective Jan. 1, 2020), to impose one-year enhancements only for each prior term served for a conviction of a sexually violent offense. (Jennings, at p. 681.) Effective January 1, 2022, the Legislature added former section 1171.1, making the change to section 667.5, subdivision (b), retroactive. (Renteria, at p. 1282.)
Section 1171.1 was later amended and renumbered as section 1172.75. (Stats. 2022, ch. 58, § 12.)
We interpret statutes de novo. The goal is to "'ascertain the Legislature's intent in order to effectuate the law's purpose.'" (People v. Gonzalez (2008) 43 Cal.4th 1118, 1125 (Gonzalez).) "We begin with the statutory language, viewed in light of the entire legislative scheme of which it is a part, as the language chosen is usually the surest guide to legislative intent." (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670; see In re Corrine W. (2009) 45 Cal.4th 522, 529.) We interpret terms used by the Legislature in context, "'giv[ing] them their usual and ordinary meaning.'" (Gonzalez, at p. 1126.) "If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy. [Citation.]" (Ibid.)
There is a split of authority regarding whether a stayed prison term enhancement is subject to resentencing under section 1172.75. This issue is pending in the California Supreme Court. In People v. Rhodius (2023) 97 Cal.App.5th 38, 44 (Rhodius), review granted February 21, 2024, S283169, this court found that "[i]n order to harmonize section 1172.75, subdivision (d)(1)'s requirement with section 1172.75, subdivision (a), the meaning of 'impose' must be interpreted to mean 'imposed and executed.'" We stated that "[t]o interpret 'imposed' as used in section 1172.75, subdivision (a), to include when a sentence was 'imposed and stayed' would require any sentencing court faced with an 'imposed and stayed' enhancement to arbitrarily lower a sentence simply because the judgment contained a stayed enhancement." (Ibid; People v. Espino (2024) 104 Cal.App.5th 188, 203 (dis. opn. of Lie, J.) (Espino) ["So the concept of a sentence enhancement being 'imposed' when its punishment was stricken is not one I claim to comprehend."].) Therefore, this court held that defendants with stayed prior prison term enhancements are not entitled to recall and resentencing under section 1172.75. (Ibid.)
In analyzing the legislative history of Senate Bill No. 483 (2021-2022 Reg Sess.) (Stats. 2021, ch. 728), this court in Rhodius observed that the Legislature was primarily concerned with providing relief to those who had served time on rulings deemed unfair, on separating inmates from their families, and on the costs to the state of incarceration. (Rhodius, supra, 97 Cal.App.5th at pp. 46-48.) "The findings, costs, and ramifications of . . . Senate Bill [No.] 483 cited during the legislative sessions presuppose inmates who are serving additional time as a result of the sentencing enhancement under section 667.5[, subdivision] (b). The references to financial and familial burdens do not logically follow if a defendant is not actually serving additional time as the result of an imposed and executed sentence associated with a section 667.5[, subdivision] (b) prior.
As such, to interpret the statute to include enhancements that were imposed and stayed would be contrary to the legislative intent and the plain language of the statute." (Id. at pp. 48-49.)
In Saldana, supra, 97 Cal.App.5th 1270, People v. Christianson (2023) 97 Cal.App.5th 300, 314-317 (Christianson), review granted February 21, 2024, S283189, and Renteria, supra, 96 Cal.App.5th 1276, however, other Courts of Appeal have observed that "[t]he presence of a stayed term or enhancement is not without significance; it is part of the sentence and remains available if its execution becomes necessary and proper for any legally sanctioned reason." (Saldana, at p. 1278; see Christianson, at p. 312 ["a stayed sentence enhancement remains as part of the judgment and continues to carry the potential for an increased sentence in certain circumstances, and removal of the stayed enhancement does provide some relief to the defendant by eliminating that potential"]; Renteria, at pp. 1282-1283 [stayed enhancements which appear in the abstract of judgment were "imposed" for purposes of § 1172.75]; accord, People v. Mayberry (2024) 102 Cal.App.5th 665, 674 (Mayberry), review granted Aug. 14, 2024, S285853; accord, Espino, supra, 104 Cal.App.5th at p. 196 [where the sentencing court imposed but struck punishment on the enhancement]; see People v. Gray (2024) 101 Cal.App.5th 148, 167 &167, fn. 14 ["Other courts to have considered this question have focused on the meaning of the term 'imposed,' and have disagreed with Rhodius."].)
The court in Christianson, supra, 97 Cal.App.5th 300, explained that "the Legislature chose to mandate a full resentencing for those individuals impacted by a now invalid section 667.5, subdivision (b) enhancement. We see no reason to differentiate between defendants serving an additional term based specifically on a now invalid enhancement[] and those for whom the enhancement was imposed but stayed. In both instances, the presence of the enhancement was one component considered by the sentencing court in pronouncing the overall sentence." (Id. at p. 315.)
Here, similar to the court in Rhodius, the trial court imposed but struck punishment on the prior prison term enhancements. We see no functional difference between striking and staying punishment on the enhancement. Thus, since striking the prior prison term enhancement would not result in a lesser sentence than the one originally imposed as required by section 1172.75, subdivision (d)(1), the court properly denied defendant's request for a full resentencing hearing. (Rhodius, supra, 97 Cal.App.5th at p. 44; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant essentially argues that we are not bound by Rhodius and that we should, instead, follow the holdings in Christianson, Renteria, and Saldana. However, "Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior decisions from another panel of the same undivided district or from the same division." (Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9.) Rhodius is a decision of this appellate division.
Nonetheless, defendant effectively argues that the majority view of the appellate courts set forth in Renteria, Christianson, and Saldana comprise a "compelling" reason to depart from this court's decision in Rhodius. We disagree.
Here, defendant was not serving a term for a judgment that included the section 667.5, subdivision (b) enhancement because the court had stricken punishment on the enhancement. To interpret the law to apply to a person who was "lucky" enough to only have his punishment on his enhancement stricken but not to someone who was "unfortunate" enough to have his enhancement completely stricken strains credulity. (People v. Hardin (2024) 15 Cal.5th 834, 847 ["'[T]he requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.' [Citation.]".)
Moreover, Christianson inaccurately states that, "When a punishment is stayed, as opposed to stricken, the trial court retains the ability to lift the stay and impose the term under certain circumstance, such as if an alternately imposed term is invalidated." (Christianson, supra, 97 Cal.App.5th at p. 312.) Contrary to Christianson's assertion, a stayed or stricken enhancement could never subsequently be imposed because the law has invalidated the imposition of punishment on the enhancement unless it was for a qualifying sexually violent offense. (Mayberry, supra, 102 Cal.App.5th at p. 676 ["It is clear from the plain language of subdivision (a) of section 1172.75 that the Legislature rendered sentence enhancements imposed pursuant to former subdivision (b) of section 667.5 legally invalid, except where imposed for a qualifying sexually violent offense."]; Espino, supra, 104 Cal.App.5th at p. 204 (dis. opn. of Lie, J.) ["[E]ven if a now-invalid enhancement under former section 667.5(b) could be said to possess some unidentified potential to affect a future sentence or trigger another collateral consequence of some kind, this would be beyond the ambit of Senate Bill No. 483."].)
Here, the underlying conviction for defendant's prior prison term enhancement was for possession of a controlled substance. Thus, the enhancement could never be imposed.
Furthermore, since the court did not execute sentence on the prior prison term enhancement, striking that enhancement as anything other than an administrative function would not promote the legislative concerns in passing Senate Bill No. 483; in other words, striking the enhancements would not provide a lessened term for defendant, would not enable him to reunify with his family, and would not result in any cost savings to the state.
We agree with this court's decision in Rhodius and the dissent in Espino; we disagree with the courts in Renteria, Christianson, Saldana, Mayberry, and the majority in Espino. Thus, defendant was not entitled to a full resentencing hearing under section 1172.75 because the court imposed but struck punishment on the enhancement. (See Rhodius, supra, 97 Cal.App.5th at p. 44; Espino, supra, 104 Cal.App.5th at pp. 202206 (dis. opn. of Lie, J.).)
2. THE ABSTRACT OF JUDGMENT SHOULD BE CORRECTED
Defendant contends that "[t]he abstract of judgment should be corrected by striking [defendant's] section 667.5, subdivision (b) enhancement." The People agree with defendant and state that "the abstract of judgment should also be corrected to reflect that [defendant] was convicted of sections 664/192, subdivision (a), not sections 664/187, subdivision (a)."
At the section 1172.75 hearing on December 21, 2023, the trial court ordered that "the abstract of judgment be amended to remove stayed-yes, stayed prison priors." The court went on to state that "[t]hey should have been stricken." The minute order for this hearing correctly reflects the court's oral pronouncement. The second amended abstract of judgment filed on December 27, 2023, however, does not. Under the "ENHANCEMENT" column, "PC 667.5(B)" is noted, and in the adjacent "TIME IMPOSED OR 'S' FOR STAYED" column, "S" is noted.
Here, because the abstract of judgment does not accurately reflect the trial court's oral pronouncement, the abstract of judgment must be corrected. (People v. Scott (2012) 203 Cal.App.4th 1303, 1324 [where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls].) Therefore, we direct the trial court to prepare an amended abstract of judgment to reflect that the section 667.5, subdivision (b) enhancement is stricken.
Moreover, the abstract of judgment reflects that defendant was convicted of "664/187(a)" for "attempted voluntary manslaughter" (all caps omitted) in count 1. The correct sections for attempted voluntary manslaughter, however, should be sections 664 and 192, subdivision (a). (See § 192, subd. (a).) Therefore, the trial court is directed to amend the abstract of judgment to accurately reflect the conviction on count 1 as "664/192(a)."
DISPOSITION
The trial court is ordered to correct the abstract of judgment filed on December 27, 2023, as follows: (1) strike the section 667.5, subdivision (b) enhancement; and (2) correct the conviction on count 1 to violating sections "664/192(a)." In all other respects, the judgement is affirmed.
I concur: CODRINGTON J.
FIELDS J., Dissenting.
I respectfully dissent to the holding in the majority opinion that defendant is not entitled to a full resentencing pursuant to Penal Code section 1172.75. The majority opinion follows this court's opinion in People v. Rhodius (2023) 97 Cal.App.5th 38, which held that where a trial court imposes a one-year sentence on a section 667.5, subdivision (b) prison prior, but stays the punishment, a defendant is not entitled to a full resentencing under section 1172.75, subdivision (a).
In my view, the defendant is entitled to a full resentencing pursuant to section 1172.72, subdivisions (a)-(c). The dispute here "centers around the meaning of the word 'imposed' as used in section 1172.75, subdivision (a), and, more specifically, whether a sentence enhancement pursuant to section 667.5, subdivision (b), that was imposed and stayed for a non-sexually-violent offense prior to January 1, 2020, is 'a sentencing enhancement described in subdivision (a)' of section 1172.75." (People v. Christianson (2023) 97 Cal.App.5th 300, 311 (Christianson), review granted Feb. 21, 2024, S283189, italics omitted.)
The Courts of Appeal are divided on this question, and the issue is currently before the Supreme Court. (Compare Christianson, supra, 97 Cal.App.5th 300 [Recall and resentencing is available when prison prior enhancement is imposed and stayed.]; People v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted Mar. 12, 2024, S283547 [same]; &People v. Renteria (2023) 96 Cal.App.5th 1276 [same] with People v. Rhodius, supra, 97 Cal.App.5th 38 (Rhodius), review granted Feb. 21, 2024, S283169 [Recall and resentencing is only available when prison prior enhancement is imposed and executed.].)
I generally agree with the Christianson decision, which in my view sets forth the correct statutory interpretation of section 1172.75. (See Christianson, supra, 97 Cal.App.5th at pp. 311-315.) Section 1172.75, subdivisions (a) and (c), provide that a defendant currently serving time on a judgment that includes a section 667.5, subdivision (b) enhancement imposed before January 1, 2020, is entitled to a full resentencing hearing.
The court in Christianson explicated that, "[o]n its face, the word 'imposed,' in this context, is at least somewhat ambiguous. As our high court has explained, 'it is important to understand that the word "impose" applies to enhancements that are "imposed and then executed" as well as those that are "imposed and then stayed. However, as a practical matter, the word 'impose' is often employed as shorthand to refer to the first situation, while the word 'stay' often refers to the latter." '" (Christianson, supra, 97 Cal.App.5th at p. 311.)
Despite this apparent ambiguity, the Christianson court rejected the People's claim that the Legislature intended the word" 'imposed,'" as used in section 1172.75, to be limited to enhancements that were imposed and executed. (Christianson, supra, 97 Cal.App.5th at p. 311.) Further, as the court explained in Christianson, "[s]ection 1172.75 requires the CDCR to identify all inmates 'currently serving a term for a judgment that includes an enhancement described in subdivision (a).' [Citation.] A judgment may include a sentence that has been imposed but suspended or stayed [or stricken]. [Citations.] Thus, by its plain language, all that is required for the CDCR to identify an inmate under section 1172.75, subdivision (b), is for the enhancement to be included in the abstract of judgment, regardless of whether it is imposed or stayed [or stricken]. Had the Legislature intended for the language in subdivision (b) to limit the identification to those inmates that would necessarily be required to serve an additional term based on the enhancement, it certainly could have done so." (Christianson, supra, 97 Cal.App.5th at pp. 311-312.) The same reasoning applies where, as here, the court imposes the one-year punishment prescribed by former section 667, subdivision (b), but thereafter strikes that punishment.
The court in Christianson noted that "[t]he sentencing court must then 'verify that the current judgment includes a sentencing enhancement described in subdivision (a).'" (Christianson, supra, 97 Cal.App.5th at p. 312; § 1172.75, subd. (c).) The court continued as follows: "At this point, the incorporation of subdivision (a) requires that the current judgment include a sentencing enhancement imposed pursuant to section 667.5, subdivision (b). However, the use of the word 'verify' suggests that the sentencing court is doing just that, verifying that the individual the CDCR identified is in fact an individual described by the statute, not looking to see if the inmate meets an additional requirement (i.e., that the enhancement is imposed and not stayed [or stricken]). It does not follow logic or reason to read these two subdivisions together in a manner that would require the CDCR to identify a larger class of inmates-all those serving time on a judgment that include[s] a now invalid enhancement-only for the trial courts to then look at the same abstracts of judgment available to the CDCR to determine whether the previous court imposed additional time for, or stayed, [or struck the punishment for] the relevant enhancements." (Christianson, at p. 312.)
Finally, Christianson observed that the overarching "statutory scheme at issue here involves statutory amendments expressly aimed at reducing sentences by retroactively eliminating a sentencing enhancement described as exacerbating 'existing racial and socio-economic disparities in our criminal justice system.'" (Christianson, supra, 97 Cal.App.5th at p. 314.) The court noted that the resentencing procedures set forth in the statutory scheme promoted this legislative goal insofar as they "require that the trial court conduct a full resentencing for those defendants impacted by the now invalid enhancement in light of all associated sentencing reform." (Ibid.) Given this legislative objective, the Christianson court inferred that the Legislature presumably "intended to provide broad relief to all defendants impacted by the now invalid section 667.5, subdivision (b) enhancements." (Ibid.)
I respectfully disagree with one portion of Christianson. Acknowledging that section 1172.75, subdivision (d)(1), requires a trial court to impose a lesser sentence than originally imposed, Christianson rejected the notion that removing a stayed term does not result in a lesser sentence. (Christianson, supra, 97 Cal.App.5th at p. 312.) Rather, the court concluded that even a stayed term has potential consequences to a sentence since the trial court "retains the ability to lift the stay and impose the term under certain circumstance[s], such as if an alternately imposed term is invalidated." (Ibid.; accord, Saldana, supra, 97 Cal.App.5th at p. 1278 [stayed enhancement is part of sentence and remains available if its execution becomes necessary].) I disagree with this conclusion since a prison prior that was imposed before 2020, and was not for a sexually violent offense, is now legally invalid under section 1172.75, subdivision (a); thus, a court has no ability to lift a stay and impose such a prison prior in the future.
In any event, in the instant case, there is no dispute defendant was serving time on a judgment that includes a section 667.5, subdivision (b) enhancement that was not for a sexually violent offense. Section 1172.75 expressly provides that if a "current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).) Applying Christianson here, defendant is entitled to a full resentencing under section 1172.75. (§ 1172.75, subds. (a), (c); see Christianson, supra, 97 Cal.App.5th at pp. 314-315.) "By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court [or appellate court] strike the newly 'invalid' enhancements." (People v. Monroe (2022) 85 Cal.App.5th 393, 402; see People v. Buycks (2018) 5 Cal.5th 857, 893 ["[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' "].) At resentencing, the court shall "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)) and shall consider any "postconviction factors" militating against continued incarceration (§ 1172.75, subd. (d)(3)).
At the original sentencing in the instant case, the sentencing court sentenced defendant to a one-year punishment on the prior prison enhancement but struck the punishment. Accordingly, the enhancement was part of the sentence and was included in the abstract of judgment.
The CDCR presumably identified defendant as eligible for relief because the enhancement was included in the abstract of judgment. (Christianson, supra, 97 Cal.App.5th at p. 312 ["[A]ll that is required for the CDCR to identify an inmate under section 1172.75, subdivision (b) is for the enhancement to be included in the abstract of judgment ...."].)
Notably, since the filing of Christianson, the Sixth Appellate District has published an opinion agreeing with Christianson and further concluding that section 1172.75 "applies whenever a prison prior is included in a judgment, whether the prior is executed, stayed, or punishment is struck." (People v. Espino (2024) 104 Cal.App.5th 188, 194 (Espino), review granted Oct. 23, 2024, S286987.)
The People ask us to follow Rhodius, supra, 97 Cal.App.5th 38, which held that the express language in section 1172.75, subdivision (d)(1), requiring the resentencing to" 'result in a lesser sentence than the one originally imposed as a result [of] the elimination of the repealed enhancement,'" combined with the legislative history behind the enactment of Senate Bill Nos. 136 and 483, require the conclusion that section 1172.75 does not invalidate prior prison term enhancements that were imposed but stayed. (Rhodius, at pp. 42-49.) Rhodius reasoned as follows: "Section 1172.75 subdivision (d)(1)'s requirement that the resentencing shall result in a lesser sentence than the one originally imposed necessitates the conclusion that the repealed enhancement increased the length of the sentence. The only way for the repealed enhancement to have increased the length of a sentence is for the enhancement to have been imposed and executed. If the repealed enhancement was imposed and stayed, the sentence would not have been increased, as was the case here." (Id. at pp. 43-44.)
Although Rhodius was thoughtfully decided, I respectfully disagree with it. Rather, I agree with Christianson's conclusion that section 1172.75 applies to cases in which the inmate's abstract of judgment includes a section 667.5, subdivision (b) enhancement "regardless of whether it is imposed or stayed." (Christianson, supra, 97 Cal.App.5th at pp. 305, 312.) I further agree with the Espino court that section 1172.75 "applies whenever a prison prior is included in a judgment, whether the prior is executed, stayed, or punishment is struck." (Espino, supra, 104 Cal.App.5th at p. 194.)
Under Rhodius, the word "imposed" in section 1172.75, subdivision (a), means "imposed and executed." Thus, the "imposed and stayed" prior convictions in that case were not "imposed" within the meaning of section 1172.75, subdivision (a). If that interpretation is correct, then the prison prior convictions in that case would not be legally invalid, and the trial court in Rhodius should not have struck them. Yet, the trial court in Rhodius did strike them, strongly inferring their invalidity, and the Rhodius court affirmed the trial court's action. In my view, section 1172.75 either applies or does not apply.
This assumes the judgment was final as of January 1, 2020, as SB 136 on its own is not retroactive to final judgments.
As previously noted, in Rhodius, the trial court "vacated the sentence for defendant's two section 667.5 [subdivision] (b) priors and ordered them stricken." (Rhodius, supra, 97 Cal.App.5th at p. 41.) Thus, the only issue was whether the court was required to give the defendant "a full resentencing hearing going beyond striking his two priors." (Ibid.) Likewise, here, the majority opinion orders the prison prior stricken but does so only after ruling that defendant was ineligible for relief under section 1172.75. In my view, if section 1172.75 applies such that the court feels compelled to strike the prison prior conviction, then the prior is legally invalid and defendant is entitled to a full resentencing. Thus, the matter must be remanded for the court to vacate the prison prior and fully resentence defendant pursuant to section 1172.75, subdivisions (c) and (d).
Although the length of sentence does not change when a trial court vacates a now invalid prior conviction that had previously been stayed, the defendant, nevertheless, receives a significant benefit. To the extent the abstract of judgment will no longer show the prison prior conviction, the consequences of defendant's plea are reduced. As result of the court's action, the case will no longer reflect the prior conviction if a court assesses the appropriate disposition in any future case or on a violation of parole on the current case.
Finally, a careful review of the statute reveals that the statute contains language favorable to an interpretation consistent with that taken by Rhodius, and it also contains language favorable to an interpretation consistent with that taken in Christianson. I agree with the court in Espino, supra, 104 Cal.App. 5th at p. 198, that under the rule of lenity, where the Legislature's intent cannot be determined, courts must prefer the interpretation that is most favorable to defendants.
In sum, I conclude that the trial court erred in finding defendant ineligible for relief. The CDCR properly identified him as a person in custody "currently serving a term for a judgment that includes an enhancement described in [section 1172.75,] subdivision (a)." (§ 1172.75, subd. (b).) He was therefore entitled to a recall of his sentence and a full resentencing under the terms of section 1172.75, which would include the application of "any other changes in law that reduce sentences or provide for judicial discretion" (§ 1172.75, subd. (d)(2)) and consideration of "postconviction factors" militating against continued incarceration (§ 1172.75, subd. (d)(3)). I would reverse the denial order and remand to the trial court for a full resentencing hearing pursuant to section 1172.75, subdivisions (c) and (d).