Opinion
H051278
11-07-2024
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO SORIA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1491514)
Greenwood, P. J.
Humberto Soria petitioned for resentencing under Penal Code section 1172.75,which mandates resentencing for a person in custody serving a term that includes a sentence enhancement imposed prior to January 1, 2020, pursuant to subdivision (b) of section 667.5. Although Soria's judgment included enhancements under section 667.5, the punishment for those enhancements had been struck in the original judgment. The trial court therefore denied the petition, concluding that when the punishment for a section 667.5, subdivision (b) enhancement is stayed, struck, or dismissed, section 1172.75 does not apply. We disagree and reverse, noting that the weight of authority leads to the conclusion that a sentence enhancement that is part of a judgment is "imposed" for purposes of section 1172.75 even if it has been stayed, or the punishment for the enhancement has been struck.
Subsequent undesignated statutory references are to the Penal Code.
Section 667.5 concerns sentence enhancements for prior prison terms.
The underlying facts of Soria's crimes are not relevant to the issue on appeal; we therefore include only the procedural history.
In September 2015, Soria was convicted by plea of the following counts: (1) attempted murder (§§ 664, subd. (a), 187; count 1); (2) assault with semiautomatic firearm (§ 245, subd. (b); count 4). Count 1 included firearm, gang, and infliction of great bodily injury enhancements. (§§ 12022.53, subd. (c), 186.22, subd. (b)(1)(C), 12022.7, subd. (a).) Count 4 included firearm and gang enhancements. (§§ 12022.5, subd. (a), 186.22, subd. (b)(1)(C).) The judgment also included an enhancement for four prior prison terms served by Soria. (§ 667.5, subd. (b).) The trial court sentenced Soria to a total determinate term of 28 years in prison. The court struck the punishment for the gang and prior prison term enhancements, but did not strike the enhancements themselves, which remained part of the judgment.
In July 2023, Soria petitioned to be resentenced pursuant to section 1172.75. The district attorney argued that Soria was not eligible for resentencing under section 1172.75 because he was "serving a prison sentence that does not include a prior prison commitment that was imposed and executed." The trial court agreed that "[t]he section 667.5(b) enhancement was not 'imposed' because no additional term of punishment was added to the base when the punishment was stayed or stricken at the time of sentencing." The court concluded that "where the punishment for the section 667.5(b) enhancement was stayed, stricken or dismissed, the statute does not apply." The court therefore denied the petition.
Soria timely appealed.
II. Discussion
Soria argues he is entitled to resentencing pursuant to section 1172.75 to vacate his prior prison term enhancements. The Attorney General contends Soria is not eligible for relief under that statute because the punishment for the enhancements was "stricken rather than imposed." Reviewing the issue de novo (People v. Renteria (2023) 96 Cal.App.5th 1276, 1281-1282 (Renteria)), we follow the weight of authority in concluding that an enhancement is "imposed" even if it has been stayed or the punishment for the enhancement is struck.
Section 1172.75, subdivision (a) provides that, with one exception not applicable here, "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5 . . . is legally invalid. (§ 1172.75, subd. (a).) The statute requires the Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a)." (§ 1172.75, subd. (b).) After receiving that information, "[i]f 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).)
There is a split of authority regarding the application of section 1172.75 to stayed sentencing enhancements. In People v. Rhodius (2023) 97 Cal.App.5th 38 (Rhodius), the court relied on People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), in which the California Supreme Court stated that the word "impose" as used in section 12022.3,means "impose and then execute, as opposed to impose and then stay." (Id. at p. 1126.) Based on Gonzalez, and the legislative history of the statute, the Rhodius court also concluded that section 1172.75 was intended to apply to enhancements that were imposed and executed, not imposed and stayed. (Rhodius, at pp. 44-45.)
Section 12022.3 concerns sentence enhancements for the use of a firearm in the commission of enumerated felonies.
A panel of this court, however, reached a different conclusion in Renteria, noting that the California Supreme Court in Gonzalez also commented that" '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." '" (Renteria, supra, 96 Cal.App.5th at p. 1282.) The court therefore concluded that, despite the fact that his sentence included a stay of the prior prison term enhancements, the defendant was entitled to a full resentencing under section 1172.75. (Id. at pp. 1282-1283.)
Other appellate courts have followed the analysis in Renteria. (See People v. Christianson (2023) 97 Cal.App.5th 300, 311 (Christianson) [stating that, "in the context of the entire statutory scheme, the stated legislative intent, and the legislative history, [the court was] not convinced . . . that the Legislature intended the word 'imposed' in this context to be limited to enhancements that were imposed and executed."]; see also People v. Saldana (2023) 97 Cal.App.5th 1270, 1276, 1278 [agreeing with Renteria and Christianson and noting 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."]; see also People v. Mayberry (2024) 102 Cal.App.5th 665, 674 [disagreeing "with the conclusion in Rhodius that section 1172.75 does not invalidate prior prison term enhancements that were imposed and stayed."].) We also agree with the reasoning of Renteria and the majority of appellate courts, and therefore conclude that a sentence enhancement that is part of a judgment is "imposed" for purposes of section 1172.75 even if it has been stayed.
The Attorney General argues that section 1172.75 requires that resentencing "shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement" and that a sentence cannot be reduced if it was not increased by an enhancement in the first place. (§ 1172.75, subd. (d)(1).) This argument is unpersuasive. If an enhancement is removed completely from a judgment, that eliminates the continued "potential for an increased sentence in certain circumstances, and removal of the . . . enhancement does provide some relief to the defendant by eliminating that potential." (Christianson, supra, 97 Cal.App.5th at p. 312.)
We recognize that in this case the trial court struck the punishment rather than staying the punishment for the enhancements, but we do not believe that this is a material distinction that should preclude relief for Soria and similarly situated persons seeking resentencing under section 1172.75. In People v. Espino (2024) 104 Cal.App.5th 188, 198, the majority of a panel of this court concluded that section 1172.75 applies where a now invalid prison prior was imposed but punishment was struck. The court in Espino observed, among other things, that "when an enhancement has been imposed but punishment struck, '[t]he fact of the enhancement . . . remain[s]' and may adversely impact the defendant in other ways such as restricting the ability to accrue conduct credits or subjecting the defendant to additional punishment for future convictions. [Citations.]." (Id. at p. 201.) We concur with the reasoning in Espino, and are unpersuaded that a distinction should be drawn when a punishment for an enhancement is struck rather than stayed. (See Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9 ["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."].)
Soria is serving a sentence based on a judgment that includes a qualifying sentence enhancement and therefore falls within the provisions of section 1172.75. (§ 1172.75, subds. (a) &(c).) Accordingly, we remand the matter for the trial court to recall Soria's sentence and resentence him.
As an alternative, the Attorney General suggests that the purpose of section 1172.75 would be met if this court struck the enhancements. We see no reason to follow this proposal, rather than adhering to the statute as written and enacted by the Legislature. (See Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 73-74 ["A court may not rewrite a statute, either by inserting or omitting language, to make it conform to a presumed intent that is not expressed."].)
III. Disposition
The trial court's order denying Soria's petition for resentencing is reversed. The matter is remanded to the trial court to recall Soria's sentence and resentence him consistent with section 1172.75 and current law.
I CONCUR: Grover, J.
Lie, J., Dissenting:
For the reasons I stated in People v. Espino (2024) 104 Cal.App.5th 188, 202-206 (dis. opn. of Lie, J.), I respectfully dissent.