People v. Koger CA6

Filed 11/18/24 P. v. Koger CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H051467 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1359290)

v.

SETH ANDREW KOGER,

Defendant and Appellant.

I. INTRODUCTION In 2014, defendant Seth Andrew Koger1 was sentenced to 15 years in prison. In sentencing defendant, the trial court struck the punishment for a prior prison term enhancement (Pen. Code, § 667.5, former subd. (b))2 that arose out of defendant’s prior conviction for battery resulting in serious bodily injury. In 2023, after the Legislature limited the circumstances in which a prior prison term enhancement may apply, defendant filed an application for resentencing under section 1172.75 regarding the now invalid prior prison term enhancement. The trial court denied defendant’s petition after concluding that the statute does not apply when the punishment for the enhancement has been stricken by the original sentencing court.

The record on appeal includes documents in which defendant’s last name is also 1

spelled as “Kroger.” 2 All further statutory references are to Penal Code unless otherwise indicated.

On appeal, defendant contends that the trial court erred in determining that section 1172.75 does not apply if the punishment for the prior prison term enhancement has been stricken. For reasons that we will explain, we conclude that defendant is entitled to have his sentence recalled under section 1172.75. We will therefore reverse the trial court’s order and remand the matter for further proceedings under section 1172.75, subdivision (d). II. BACKGROUND A. Defendant’s Convictions and Sentence In 2014, defendant was convicted by jury of inflicting corporal injury on a cohabitant (§ 273.5, former subd. (a)). Allegations were found true that defendant inflicted great bodily injury (§ 12022.7, subd. (e)), suffered a prior serious felony conviction (§ 667, former subd. (a)), suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), and served a prior prison term (§ 667.5, former subd. (b)). The record reflects that defendant’s prior prison term was based on a conviction for battery resulting in serious bodily injury. In the instant case, the trial court sentenced defendant to 15 years in prison. The sentence consisted of the middle term of three years, doubled; a consecutive term of four years for the great bodily injury enhancement; and a consecutive term of five years for the prior serious felony enhancement. The court struck the punishment for the prior prison term enhancement, and the abstract of judgment reflects that the punishment for this enhancement was stricken. B. Change in Law Regarding Prior Prison Term Enhancements Effective January 1, 2020, the law changed to provide that prior prison term enhancements under section 667.5, subdivision (b) are limited to cases in which the defendant’s prior prison term was for a sexually violent offense. (Stats. 2019, ch. 590, § 1; People v. Velasco (2023) 97 Cal.App.5th 663, 667, fn. 2 (Velasco).) Further, “[i]n 2021, the Legislature enacted Senate Bill 483, which sought to make the changes . . . retroactive” and which provides for resentencing in certain cases. (Velasco, supra, at