People v. Marquez CA4/1

Filed 8/22/24 P. v. Marquez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083392

Plaintiff and Respondent,

v. (Super. Ct. No. SCN304918)

ISSAC GOMEZ MARQUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Reversed and remanded with instructions. Richard Jay Moller, under 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, Collette C. Cavalier, Kathryn Kirschbaum and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION Isaac Gomez Marquez appeals the denial of his motion for resentencing

under Penal Code1 section 1172.75. Because the trial court’s ruling was based on an erroneous interpretation of section 1172.75, we reverse and remand for full resentencing. In July 2012, Marquez pled guilty to robbery (§ 211) and admitted he personally used a deadly weapon (§ 12022, subd. (b)(1)). He also admitted he suffered a prior felony conviction in 2006 that qualified as a strike prior (§§ 667, subd. (b)–(i) and 1170.12), a serious felony prior (§§ 667, subd. (a)(1), and 1192.7, subd. (c)), and a prior prison term enhancement (§ 667.5, former subd. (b) (hereafter, “section 667.5(b)”)). In August 2012, the trial court sentenced Marquez to a total prison term of 12 years, consisting of the middle term of three years for the robbery, doubled for the strike prior, plus one year for the weapon enhancement and five years for the serious felony enhancement. It stayed the one-year punishment for the prior prison term enhancement under section 667.5(b). Effective January 1, 2022, section 1172.75 was added to the Penal Code by virtue of the passage of Senate Bill No. 483 (2021–2022 Reg. Sess.). (Stats. 2021, ch. 728, § 3.) Section 1172.75 provides that certain sentence enhancements “imposed prior to January 1, 2020” pursuant to section 667.5(b), are “legally invalid.” (§ 1172.75, subd. (a).) It directs the Department of Corrections (CDCR) to identify those persons in custody “currently serving a term for a judgment that includes an enhancement described in subdivision (a) . . . to the sentencing court that imposed the enhancement.” (Id., subd. (b).) Upon receiving this information, “[i]f the