argued the prosecution did not carry its burden to show the Michigan sex offense was
comparable to those listed in WIC Section 6600(b).
The court concluded out-of-state convictions could be sexually violent offenses
warranting prison prior enhancements even after the change in the law that section
1172.75 addressed. It pointed out Welfare and Institutions Code section 6600 subdivision
(a)(2)(C) says “[A] prior conviction in another jurisdiction for an offense that includes all
of the elements of [an] offense described in subdivision (b)”—which lists Penal Code
provisions—“shall be considered a conviction for a sexually violent offense.” At a later
hearing, the court found Vicencio’s prior Michigan conviction qualified as a sexually
violent offense and declined to recall Vicencio’s sentence.
II
ANALYSIS
Vicencio argues the trial court erred by determining his section 667.5 prison prior
enhancement remains valid. In his view, his Michigan conviction was not a sexually
violent offense as defined in section 1172.75. We disagree.
Formerly, section 667.5, subdivision (b) (Section 667.5(b)) required a sentencing
court to add a one-year term “for each separate prison term served on any prior felony
3
conviction, subject to a five-year felony-free exception.” (People v. Jordan (1986) 42
Cal.3d 308, 314.) In 2019, the Legislature passed Senate Bill No. 136 (2019-2020 Reg.
Sess.), which amended Section 667.5(b) to limit prison prior enhancements to prison
terms served for certain sexually violent offenses. “The court shall impose a one-year
term for each prior separate prison term for a sexually violent offense as defined by
subdivision (b) of Section 6600 of the Welfare and Institutions Code.” In 2021, the
Legislature enacted Senate Bill No. 483 (SB 483) (Stats. 2021, ch. 728, § 1), codified in
section 1172.75, to apply Senate Bill 136 retroactively to anyone already serving a term
of incarceration for a prison prior.
With one exception, section 1172.75, subdivision (a) makes invalid “[a]ny
sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision
(b) of Section 667.5.” It is uncontested that Vicencio’s 2011 sentence included an
enhancement imposed under that subdivision. Yet section 1172.75 excepts “any
enhancement imposed for a prior conviction for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (§ 1172.75, subd.
(a).) “If 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).)
The question we face is whether Vicencio’s Michigan conviction can be a sexually
violent offense such that it is excepted from section 1172.75 relief. According to
Vicencio, no matter the character of the offense, no out-of-state offense is a “sexually
4
violent offense” under section 1172.75 because those are limited to offenses “defined in”
WIC Section 6600(b). This is a legal question of statutory interpretation we review
independently. (Hubbard v. California Coastal Com. (2019) 38 Cal.App.5th 119, 135.) In
so doing, we give the words of the statute their ordinary meaning to ascertain the purpose
of the Legislature. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.)
WIC Section 6600(b) says the term “sexually violent offense” means “the
following acts when committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or threatening to retaliate in the
future against the victim or any other person, . . . and result in a conviction or a finding of
not guilty by reason of insanity, as defined in subdivision (a): a felony violation of
Section 261, 262, 264.1, 269, 286, 287, 288, 288.5, or 289 of, or former Section 288a of,
the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code,
committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 287,
288, or 289 of, or former Section 288a of, the Penal Code.” According to Vicencio, this
provision means an offense committed and prosecuted outside of California cannot be a
sexually violent offense because it did not result in a conviction under one of the listed
California Penal Code provisions.
Vicencio misreads the statute. WIC Section 6600(b) does not define and limit
sexually violent offenses to an enumerated list of California Penal Code provisions.
Instead, it defines sexually violent offenses as acts committed by force, violence, duress,
menace, or fear that “result in a conviction or a finding of not guilty by reason of
5
insanity, as defined in subdivision (a).” (Italics added.) Thus, the definition in WIC
Section 6600(b) incorporates by reference the definition of “sexually violent offense” in
Welfare and Institutions Code section 6600, subdivision (a). That subdivision lists types
of convictions that are considered sexually violent offenses. (Welf. & Inst. Code, § 6600,
subd. (a)(2).) One of those categories is “[a] prior conviction in another jurisdiction for
an offense that includes all of the elements of an offense described in subdivision (b).”
(Id., subd. (a)(2)(C), italics added.) WIC Section 6600(b) identifies the acts that can serve
as the basis for a prison prior enhancement, and section 6600(a)(2) identifies the type of
convictions that are included. As another example, the statute says a finding of not guilty
by reason of insanity to one of the WIC Section 6600(b) offenses counts as a conviction
(Welf. & Inst. Code, § 6600, subd. (a)(2)(F)) just as it says another jurisdiction’s
conviction including the elements of one those offenses counts.
From this statutory language, Vicencio’s Michigan conviction can serve as the
basis for a valid prison prior enhancement if the offense included all the elements of one
of the listed California Penal Code offenses. The trial court was therefore correct to
conclude Vicencio was not entitled to resentencing as a matter of law. The trial court also
concluded Vicencio’s Michigan offense of conviction included all the elements of a
California offense, and Vicencio does not challenge that conclusion on appeal. We
therefore affirm the order denying him relief.
6
III
DISPOSITION
We affirm the order denying relief under section 1172.75.
CERTIFIED FOR PUBLICATION
RAPHAEL J.
We concur:
RAMIREZ P. J.
MILLER J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that out-of-state convictions can qualify as "sexually violent offenses" under Penal Code section 1172.75, provided they contain all the elements of an offense listed in Welfare and Institutions Code section 6600, subdivision (b).
Issues
Whether out-of-state convictions can be considered "sexually violent offenses" for purposes of the resentencing relief provided by Penal Code section 1172.75.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Vicencio’s Michigan conviction can serve as the basis for a valid prison prior enhancement if the offense included all the elements of one of the listed California Penal Code offenses.”