People v. Palacios CA4/3

Filed 11/27/24 P. v. Palacios CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063544

v. (Super. Ct. No. 17NF1842)

FULVIO FRANCISCO PALACIOS, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded with directions. Gerald J. Miller, 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 Sahar Karimi, Deputy Attorneys General, for Plaintiff and Respondent. * * * Defendant Fulvio Francisco Palacios appeals the trial court’s denial of his petition to recall his sentence and resentence him, pursuant to Penal Code section 1172.75, formerly section 1171.1.1 Section 1172.75, subdivision (a) provides that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.” There is a split of authority regarding whether a court must conduct a resentencing hearing pursuant to section 1172.75 when the invalidated prior prison term enhancements were imposed but stayed, as in defendant’s case. Defendant argues we should follow People v. Christianson (2023) 97 Cal.App.5th 300, 305, review granted February 21, 2024, S283189 (Christianson), which interpreted section 1172.75 to apply to enhancements that were imposed but stayed. (Id. at p. 305.) The Attorney General urges us to follow People v. Rhodius (2023) 97 Cal.App.5th 38, 42, review granted February 21, 2024, S283169 (Rhodius), which concluded a defendant is only entitled to a resentencing hearing where the prison term enhancements were both imposed and executed. (Id. at p. 42.)