California Court of Appeal Dec 6, 2024 No. E082616Unpublished
Filed 12/6/24 P. v. Major CA4/2 See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E082616
v. (Super.Ct.No. RIF1303646)
JAMES MARCEL MAJOR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
William Paul Melcher, 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, Kristen Chenelia and Daniel Rogers,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant James Marcel Major challenges the trial court’s order
finding he was not eligible for recall and resentencing relief under Penal Code
section 1172.75.1 The court entered its order after verifying a one-year enhanced term
Defendant also admitted personal use of a firearm (§ 12022.5, subd. (a)) and to additional
penalty enhancements under both sections 667 and 667.5. Defendant’s admissions
included a serious felony prior conviction (§ 667, subd. (a)), a strike prior (§§ 667,
subds. (b)-(i); 1170.12, subds. (a)-(e)), and having served a prior prison sentence
(§ 667.5, subd. (b)).
The trial court imposed its indicated 21-year prison term. The court stated that
“[f]or the prison prior under 667.5(b) . . . defendant [is] committed . . . to state prison for
one year,” but noted, “I am going to stay the punishment on that . . . .”2
Almost 10 years later, in November 2023, defendant appeared before the court on
a video call at a hearing regarding his sentence. Our record includes scant details as to
1 All further statutory references are to the Penal Code.
2 Like the trial court, for brevity and ease of reference, we will generally refer to statutory subdivisions in a condensed format, e.g., sections 667.5(b), 1172.75(a), etc. 2
how the hearing arose, with no motion filed by the People or defendant before the
hearing. The trial court’s minute order states in pertinent part in an “Action Description”
In our view, the statutory language requiring a lesser sentence is better reconciled
with an actual reduction in “time served” as the enactment’s goal, as reflected throughout
section 1172.75’s legislative history. (See Rhodius, supra, 97 Cal.App.5th at pp. 46-48
[identifying numerous such instances].) We summarized that history as follows: “The
findings, costs, and ramifications of Senate Bill 136 and Senate Bill 483 cited during the
legislative sessions presuppose inmates who are serving additional time as a result of the
sentencing enhancement under section 667.5(b). The references to financial and familial
burdens do not logically follow if a defendant is not actually serving additional time as
the result of an imposed and executed sentence associated with a section 667.5(b) prior.
As such, to interpret the statute to include enhancements that were imposed and stayed
would be contrary to the legislative intent and the plain language of the statute.”
(Rhodius, at pp. 48-49.)
The post-Rhodius cases noted ante do not address this extensive history, which we
continue to find persuasive. (See Rhodius, supra, 97 Cal.App.5th at p. 47 [the foregoing
history reflects “a clear presupposition by the Legislature of an imposed and executed
sentence”].)
Moreover, we think the purpose of a stay being to “preserve the possibility of
[later] imposition,” as identified in Christianson and Brewer, better fits with
section 1172.75 applying to executed section 667.5(b) terms—not to stayed ones. The
10
Legislature directed courts in section 1172.75(c) to look to the “current judgment” to
determine whether a defendant is eligible for resentencing. Specifying the “current”
judgment is odd: one would expect a court considering resentencing to look, without this
prodding, to the defendant’s current judgment, not a superseded one. Emphasis on the
current judgment may reflect that the Legislature was attuned to the possibility of a stay
in a defendant’s original judgment and only intended resentencing to apply in such cases
if the section 667.5(b) term was later executed in the current judgment. There would be
no need to specify the current judgment if a stayed prior prison term in the defendant’s
original judgment triggered resentencing regardless of whether it was later executed or
remained stayed.
For all the foregoing reasons, we continue to adhere to Rhodius.
DISPOSITION
We affirm the trial court’s ruling denying defendant a resentencing hearing under
section 1172.75; the court’s ruling was correct because the prison prior enhancement
imposed under section 667.5(b) at his original sentencing has never been executed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. I concur:
MILLER J.
11
[People v. Major, E082616]
MENETREZ, J., dissenting:
I am persuaded by the analysis in People v. Christianson (2023) 97 Cal.App.5th
300, review granted February 21, 2024, S283189, and similar cases. I consequently
disagree with the approach taken by People v. Rhodius (2023) 97 Cal.App.5th 38, review
granted February 21, 2024, S283169. Because review is pending in all of the relevant
cases, they have “no binding or precedential effect, and may be cited for potentially
persuasive value only.” (Cal. Rules of Court, rule 8.1115(e)(1).) Because I agree with
Christianson and similar cases, I would reverse and remand for resentencing under Penal
Code section 1172.75, subdivision (d).
MENETREZ J.
1
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is not eligible for recall and resentencing under Penal Code section 1172.75 if the prior prison enhancement under section 667.5(b) was imposed but stayed, as the statute requires the enhancement to have been executed.
Issues
Whether a prior prison enhancement that was imposed but stayed qualifies for recall and resentencing under Penal Code section 1172.75.
Whether the term 'imposed' in section 1172.75 requires that the enhancement be executed.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The only way for the repealed enhancement to have increased the length of a sentence is for the enhancement to have been imposed and executed. If the repealed enhancement was imposed and stayed, the sentence would not have been increased”
“we continue to adhere to Rhodius.”
“We affirm the trial court’s ruling denying defendant a resentencing hearing under section 1172.75; the court’s ruling was correct because the prison prior enhancement imposed under section 667.5(b) at his original sentencing has never been executed.”