Opinion
D083389
11-27-2024
THE PEOPLE, Plaintiff and Respondent, v. JOHN EDWARD JIMENEZ, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Robin Urbanski and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. CSD267560 Lisa R. Rodriguez, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Robin Urbanski and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
O'ROURKE, J.
Defendant and appellant John Edward Jimenez appeals from an order denying him resentencing under Penal Code section 1172.75. The trial court ruled that because the sentencing court had stayed Jimenez's prior prison conviction and he was not currently serving additional time due to the enhancement, he was not entitled to relief under that statute.
Undesignated statutory references are to the Penal Code.
Jimenez contends the court erred by declining to recall his sentence based on this court's decision in People v. Christianson (2023) 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189 (Christianson) notwithstanding that the question is on review in the California Supreme Court. (See People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius).) He asks us to remand the matter for further resentencing proceedings under section 1172.75.
The People ask us to reconsider Christianson, supra, 97 Cal.App.5th 38, review granted and instead follow Rhodius, which determined that section 1172.75's legislative history demonstrates "a clear presupposition by the Legislature of an imposed and executed sentence ...." (Rhodius, supra, 97 Cal.App.5th at p. 47, review granted.) We see no basis to disregard Christianson, and applying it, hold the trial court did not correctly interpret section 1172.75. Accordingly, we reverse and remand with directions that the court recall Jimenez's sentence and conduct a full resentencing.
PROCEDURAL BACKGROUND
We omit the underlying facts of Jimenez's conviction because they are not relevant to the appellate issues. In 2016, a jury convicted Jimenez of making a criminal threat (§ 422; count 1), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and misdemeanor battery (§ 242; count 3). Jimenez waived his right to a jury trial and admitted allegations that he had suffered felony convictions for robberies committed in 2001 and 2005 that constituted prior prison convictions under section 667.5, subdivision (b), serious felony convictions under section 667, subdivision (a)(1), and strike prior convictions under sections 667, subdivisions (b)-(i), 668, and 1170.12. The court thus found those allegations to be true.
After striking one of the strike prior convictions in the interest of justice, the court sentenced Jimenez to an aggregate prison term of 17 years four months. The court imposed but stayed under section 654 a one-year prison prior enhancement (§ 667.5, subd. (b)).
Jimenez's sentence consists of consecutive terms of six years (the three-year midterm, doubled) on count 2; one year four months (one-third the midterm) on count 1; and two consecutive five-year serious felony conviction enhancements (§ 667, subd. (a)(1)).
After the enactment of section 1172.75, the California Department of Corrections and Rehabilitation (CDCR) identified Jimenez as a person whose sentence could be recalled pursuant to that section. The court thereafter appointed the Office of the Public Defender to represent Jimenez for purposes of resentencing and set a status conference.
At the hearing, Jimenez's counsel submitted on her papers. The People argued Jimenez was not eligible for resentencing because the court stayed his one-year term for his prior prison conviction and he was not currently serving a sentence including that prison prior. Thereafter, the court denied resentencing: "[Section 1172.75] (and its history) demands that the court must act only if a defendant is currently serving an additional year in prison because of the imposition of the punishment for the enhancement" and the law was "intended to ensure that no one currently in prison was serving additional time for an enhancement that is no longer valid."
Jimenez's counsel's motion is not in the appellate record.
Jimenez appeals from the order.
DISCUSSION
Section 1172.75, effective January 1, 2022 (Stats. 2021, ch. 728, § 3), provides that sentence enhancements "imposed prior to January 1, 2020" pursuant to section 667.5, subdivision (b) are "legally invalid." (§ 1172.75, subd. (a).) The statute's interpretation is a question of law. (People v. Lewis (2021) 11 Cal.5th 952, 961.)
Courts of Appeal, including this one in Christianson, supra, 97 Cal.App.5th 300, review granted, have differed as to section 1172.75's proper interpretation; specifically whether the statute applies in cases where the trial court imposed one or more section 667.5, subdivision (b) enhancements but stayed them. (See People v. Renteria (2023) 96 Cal.App.5th 1276, 12821283 [applying section 1172.75 to stayed enhancement]; Rhodius, supra, 97 Cal.App.5th at pp. 43-48, rev. granted [limiting section 1172.75 to imposed and executed enhancements]; Christianson, at pp. 311-316, [finding statute applied to imposed and stayed section 667.5 enhancements]; People v. Saldana (2023) 97 Cal.App.5th 1270, 1276-1279, review granted Mar. 12, 2024, S283547 [following Christianson]; People v. Mayberry (2024) 102 Cal.App.5th 665, review granted Aug. 14, 2024, S285853 [same]; People v. Espino (2024) 104 Cal.App.5th 188, review granted Oct. 23, 2024, S286987 [same].)
In People v. Renteria, the Sixth District Court of Appeal reversed an order declining to apply section 1172.75 to a defendant's stayed prior prison term enhancements, holding that despite being stayed, they were nevertheless "imposed" within the meaning of section 1172.75. (People v. Renteria, supra, 96 Cal.App.5th at p. 1282, quoting People v. Gonzalez (2007) 43 Cal.4th 1118, 1125.)
In Rhodius, another division of this court reached the opposite conclusion based on the rationale used by the California Supreme Court in People v. Gonzalez, supra, 43 Cal.4th 1118, which interpreted the word "imposed" used in a different statute, section 12022.53. (Rhodius, supra, 97 Cal.App.5th at p. 43, rev. granted.) The court in Gonzalez "stressed the need to 'harmonize the statute internally,'" and in so doing, the court held that to carry out the statute's punishment and legislative intent, the word had to mean imposed and executed. (Rhodius, at p. 43, quoting Gonzalez, 43 Cal.5th at p. 1127.) Examining section 1172.75 as a whole, the Rhodius court found it relevant that subdivision (d)(1) of section 1172.75 requires the trial court to impose a "lesser sentence than the one originally imposed," and reasoned the only way the enhancement could affect the length of a sentence is if it had been imposed and executed. (Rhodius, at pp. 43-44.) It also found the legislative histories of section 1172.75's underlying bills "contain a clear presupposition by the Legislature of an imposed and executed sentence," and that the intent likewise "presupposes that the sentencing enhancements are, in fact, creating longer periods of incarceration," which would not be the case if the enhancement was stayed. (Rhodius, at p. 47.) Rhodius held that to interpret section 1172.75 to include enhancements that were imposed and stayed would be contrary to that intent and the statute's plain language. (Id. at pp. 48-49.)
Days after Rhodius was decided, this court in Christianson rejected a narrow interpretation of section 1172.75 and held it applies to cases in which an inmate's abstract of judgment includes one or more section 667.5, subdivision (b) enhancements that were previously imposed but stayed. (Christianson, supra, 97 Cal.App.5th at p. 305, rev. granted.) Having read the statute in the context of its entire scheme as well as its legislative intent and history, we were not convinced the Legislature intended the word "imposed" to be limited to enhancements that were imposed and executed. (Christianson, at p. 311.) In part, we observed that subdivision (a) of section 1172.75 requires the CDCR to identify all inmates" 'currently serving a term for a judgment that includes an enhancement described in subdivision (a),'" and that a judgment "may include a sentence that has been imposed but suspended or stayed." (Christianson, at p. 311.) In our view, it was illogical that the Legislature would require the CDCR to identify a larger class of inmates based on the abstract of judgment, only to have the trial court "then look at the same abstracts of judgment available to the CDCR to determine whether" the enhancements had been stayed. (Id. at p. 312.) We held "if the Legislature had intended to limit section 1172.75 only to those individuals that were currently serving an additional term based on the enhancement, it had the ability to do so" but "a plain reading of the statute, as a whole, at least suggests that the Legislature intended to use the term 'impose' in the broader sense, to include section 667.5, subdivision (b) enhancements that were both imposed and executed, and imposed and stayed." (Id. at p. 313.)
This court in Christianson rejected the People's suggestion that interpreting the statute to encompass stayed enhancements would somehow render infeasible subdivision (d)(1) of section 1172.75-requiring a court to impose a "lesser sentence than the one originally imposed." (Christianson, supra, 97 Cal.App.5th at p. 312, rev. granted.) We explained that when a punishment is stayed as opposed to being stricken, "the trial court retains the ability to lift the stay and impose the term under certain circumstance[s]," and that "removal of the stayed enhancement" therefore "provide[s] some relief to the defendant by eliminating that potential." (Ibid.) We also rejected the People's argument that Gonzalez, supra, 43 Cal.4th 1118 held to the contrary. (Christianson, at p. 313.) We pointed out that while the California Supreme Court interpreted the word "imposed" in section 12022.53, subdivision (f) to mean imposed and executed, it did so in the context of a statute intended to ensure longer sentences for felons who use firearms, whereas section 1172.75 was "expressly aimed at reducing sentences[.]" (Christianson, at p. 314.) We found the legislative history to be consistent with our reading of section 1172.75. (Id. at p. 316.)
Relying on the Gonzalez court's discussion of the word "impose," the People ask us to reconsider our decision in Christianson and follow Rhodius so as to hold the recall and resentence procedure of section 1172.75 inapplicable to an imposed and stayed section 667.5, subdivision (b) enhancement. We decline to do so. "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.) We expressly acknowledged and disagreed with the Rhodius court's interpretation of section 1172.75 (Christianson, supra, 97 Cal.App.5th at p. 316, fn. 8, rev. granted), and are not convinced otherwise to follow it.
Thus, section 1172.75 affords relief to Jimenez, whose abstract of judgment includes an imposed but stayed section 667.5, subdivision (b) enhancement. Jimenez is entitled to a full resentencing upon remand, including the application of "any other changes in law that reduce sentences or provide for judicial discretion." (§ 1172.75, subd. (d)(2).)
DISPOSITION
The order denying Jimenez recall and resentencing pursuant to section 1172.75 is reversed and the matter is remanded with instructions that the court recall Jimenez's sentence and resentence him consistent with section 1172.75 and current law.
WE CONCUR: McCONNELL, P. J. DATO, J.