People v. Clayton CA6

Filed 7/16/24 P. v. Clayton CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051277 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC512072)

v.

ADIO KAMAU CLAYTON,

Defendant and Appellant.

Adio Kamau Clayton appeals a post-judgment order denying his petition under Penal Code section 1172.751 to strike a prior prison term enhancement under section 667.5, subdivision (b) (prison prior) and to be resentenced. The trial court denied Clayton’s petition after determining that relief under section 1172.75 was unavailable because, after imposing the prison prior, the original sentencing court stayed the punishment. We conclude that the stayed prison prior was “imposed” for purposes of qualifying for relief under section 1172.75, and therefore we reverse the trial court’s order and remand for recall of Clayton’s sentence and for resentencing. I. BACKGROUND In 2006, Clayton was convicted by a jury of sodomy by force (§ 286, subd. (c)(2)), spousal rape by force (§ 262, subd. (a)(1)), false imprisonment (§§ 236, 237), and

1 Subsequent undesignated statutory references are to the Penal Code.

corporal injury on a spouse (§ 273.5, subd. (a)). The jury also found true allegations that Clayton had suffered a prior strike conviction under section 667, subdivisions (b) through (i); a serious felony prior conviction under section 667, subdivision (a); and, most importantly, a prison prior for a conviction of robbery (§§ 211, 212.5). In 2007, the trial court (hereafter sentencing court) sentenced Clayton to a total of 35 years in state prison. The sentencing court imposed a prior prison term enhancement but stayed punishment for it. In July 2023, Clayton filed a petition for resentencing under section 1172.75. Clayton asserted that an enhancement for a now-invalid prison prior had been imposed on him, and he requested recall of his sentence and full resentencing. The trial court denied Clayton’s petition. In a written decision and order, the trial court concluded that Clayton was not eligible for relief under section 1172.75 because the prior prison term enhancement in his case had been stayed and thus was not “imposed” as section 1172.75 requires. Clayton timely appealed. II. DISCUSSION Clayton contends that the trial court erred in denying his petition for resentencing because, when a prison prior is included in a judgment but punishment for it is stayed, the prison prior has been “imposed” under section 1172.75. The Attorney General disagrees and argues that because Clayton’s sentence was not altered by the imposition of the prison prior, he is ineligible for relief as a matter of law. Reviewing this question of statutory interpretation de novo (People v. Renteria (2023) 96 Cal.App.5th 1276, 1281- 1282 (Renteria)), we conclude that Clayton’s prison prior was imposed under section 1172.75 and he was entitled to resentencing. Previously, section 667.5, subdivision (b) required that a one-year enhancement be imposed for each prior prison or section 1170, subdivision (h) county jail term served, unless the defendant remained free of custody for at least five years. (§ 667.5, former subd. (b); Renteria, supra, 96 Cal.App.5th at p. 1282; People v. Jennings (2019) 42 2