Opinion
B329436
07-02-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH NOBLE, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield, Supervising Deputy Attorney General, and Seth P. McCutcheon, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA187320 Yvette Verastegui, Judge. Reversed and remanded.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield, Supervising Deputy Attorney General, and Seth P. McCutcheon, Deputy Attorney General, for Plaintiff and Respondent.
MORI, J.
Defendant Joseph Noble appeals from the trial court's order declining to recall his sentence under Penal Codesection 1172.75, which invalidates sentence enhancements for prior prison terms. The court concluded defendant was ineligible for resentencing because his prior prison terms were for sexually violent offenses as defined in subdivision (b) of Welfare and Institutions Code section 6600. The People concede defendant is entitled to relief and that the matter must be remanded for a full resentencing. We accept the People's concession and remand the matter to the trial court for recall and resentencing in accordance with section 1172.75.
All further undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
In 2001, a jury convicted defendant of two counts of indecent exposure under section 314, subd. (1), with a similar prior conviction under that statute and another under section 288 (lewd or lascivious acts on a child). The jury also found true that defendant suffered four prior convictions for purposes of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and three prior prison terms under section 667.5, subdivision (b). The prior prison terms were for (1) lewd or lascivious conduct on a child in 1978 (§ 288), (2) attempted kidnapping in 1984 (§§ 664/207, subd. (a)), and (3) indecent exposure in 1991.
The trial court sentenced defendant to 25 years to life in a state prison on the underlying counts. The court then imposed but stayed three one-year terms for the three prison priors.
In February 2023, the trial court reviewed defendant's judgment pursuant to section 1172.75. The court issued an order summarily denying resentencing. The court concluded defendant was ineligible for resentencing because his three prior prison term enhancements were imposed for sexually violent offenses.
Defendant timely appealed.
DISCUSSION
"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. [Citation.] Effective January 1, 2020, Senate Bill No. 136 [ ] (Stats. 2019, ch. 590) ([SB] 136) amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. [Citations.] Enhancements based on prior prison terms served for other offenses became legally invalid." (People v. Burgess (2022) 86 Cal.App.5th 375, 379-380.) The Legislature later enacted Senate Bill No. 483, effective January 1, 2022, to make the changes implemented by SB 136 retroactive by adding former section 1171.1 (now section 1172.75) to the Penal Code. (Id. at p. 380, citing Stats. 2021, ch. 728, § 1 ["it is the intent of the Legislature to retroactively apply . . . [SB 136] to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements"].)
Section 1172.75, subdivision (a), states, "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." The California Department of Corrections and Rehabilitation (CDCR) is required to identify for the sentencing courts all persons "currently serving a term for a judgment that includes an enhancement described in subdivision (a)." (§ 1172.75, subd. (b).) "If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
The Parties agree CDCR provided the trial court with a list of individuals, including defendant, who might be eligible for resentencing pursuant to section 1172.75 by October 2022. They also agree the list is not part of the record and the trial court does not make it publicly available. Defendant moves to augment the record to include an October 2022 letter he received from the Los Angeles County Alternate Public Defender's Office, indicating that CDCR informed the trial court he might be eligible for resentencing pursuant to section 1172.75. We grant Defendant's unopposed motion to augment. We conclude CDCR notified the trial court that defendant was eligible for relief prior to the court issuing its order.
"By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (People v. Monroe (2022) 85 Cal.App.5th 393, 402; see also People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate'"].) In resentencing the defendant, the court considers postconviction factors, including evidence that circumstances have changed since the original sentencing. (Monroe, 85 Cal.App.5th at p. 402.) It also considers whether there are any changes in the law that would reduce the sentence or provide the court with greater discretion in sentencing. (Ibid.)
Here, defendant argues his prison prior for indecent exposure (§ 314, subd. (1)) in 1991 was not based upon a sexually violent offense. The People agree, as do we, that indecent exposure (§ 314, subd. (1)) is not included in the list of sexually violent offenses enumerated in Welfare and Institutions Code section 6600, subdivision (b). It does not require force or an act of violence. Thus, the prior prison term enhancement based upon indecent exposure is legally invalid. (§ 1172.75, subd. (a).) Because it is invalid, we remand the matter to the trial court for recall and resentencing in accordance with section 1172.75. (§ 1172.75, subd. (c).)
The People further concede-citing People v. Saldana (2023) 97 Cal.App.5th 1270, review granted Mar. 12, 2023, S283547-that it is irrelevant that the prior prison terms were stayed. (Saldana, at pp. 1276-1279 [disagreeing with People v. Rhodius (2023) 97 Cal.App.5th 38, 46-49, review granted Feb. 21, 2024, S283169, which held that defendants with stayed prior prison term enhancements were not entitled to recall and resentencing under section 1172.75].) We accept the People's concession.
Defendant also argues his prison priors for the 1978 lewd or lascivious acts on a child (§ 288) and 1984 attempted kidnapping (§§ 664, 207, subd. (a)) are invalid. The People concede the instant record is insufficient to confirm these prior prison terms were for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). The related prison priors can be fully assessed during the resentencing of defendant.
DISPOSITION
The order summarily denying resentencing for defendant is reversed. The matter is remanded for recall of the sentence and full resentencing pursuant to section 1172.75.
We concur: CURREY, P. J., ZUKIN, J.