California Court of Appeal Dec 10, 2024 No. E082854Unpublished
Filed 12/10/24 P. v. Alatorre 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082854
v. (Super.Ct.No. RIF1305853)
JOEL ALATORRE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
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, and Robin H. Urbanski and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant Joel Alatorre appeals from a postjudgment order finding
him ineligible for resentencing under Penal Code1 section 1172.75. He argues the trial
court erred in denying him a full resentencing under section 1172.75. We agree and
2017, E066246) [nonpub. opn.])2 On June 7, 2016, the court sentenced him to an
indeterminate term of 25 years to life on count 4 under the Three Strikes law and a
consecutive five-year term on the prior serious felony conviction enhancement. The
court struck one of the prior prison enhancements. As to the other one, the court stated,
“I’m going to go ahead and impose 1 year but strike the punishment on that.” The court
1 All statutory references will be to the Penal Code unless otherwise indicated.
2 On our own motion, we take judicial notice of the prior nonpublished opinion in this case. (Evid. Code, §§ 459, 452, subd. (d).) 2
explained that “it will show . . . that you were sentenced to it, but that the punishment was
stricken.”3
After the enactment of Senate Bill No. 483 (2021-2022 Reg. Sess.), the
California Department of Corrections and Rehabilitation (CDCR) identified defendant as
an inmate who was serving a sentence that included a prison prior enhancement under
section 667.5, subdivision (b), which might no longer be valid under section 1172.75.4
On December 21, 2023, the court held a hearing. The parties were present, but
there was no court reporter present. The minute order reflects the following: “The Court
finds that the defendant is not eligible for resentencing under section1172.75(d) and the
Defendant’s motion for resentencing5 is denied. . . .Sentence previously imposed is
3 We note that the abstract of judgment filed on July 15, 2016, reflects the prior prison term enhancement, and lists it as “PS.” The form states that “S” stands for “stayed,” but there is no indication what “PS” stands for.
4 On the court’s own motion, we augmented the record in this case to include the CDCR list dated June 16, 2022. Defendant is listed on page 10 of that document. (See order filed on July 17, 2024, and attached exhibits.)
5 Although the minute order reflects the court denied defendant’s motion, the record does not contain a resentencing motion. Furthermore, as noted, the CDCR included defendant on its list of inmates that fell within the provisions of section 1172.75. Thus, we will assume the matter was properly before the court and that defendant requested a full resentencing.
3
vacated as to Prior 01. As to the Prior 01, the Court imposes 1 years [sic]. Court orders
time (punishment) imposed on Prior(s) 01 stricken.”6
DISCUSSION
The Order Finding Defendant Ineligible for Resentencing is Reversed
Defendant argues that the trial court erred in determining he was not entitled
to a full resentencing under section 1172.75, subdivision (d). He contends that
section 1172.75 should be construed to require a full resentencing since his sentence
included a now invalid section 667.5, subdivision (b) enhancement, even though the
punishment was stayed on the enhancement. We observe that, contrary to defendant’s
contention, it appears that the court struck rather than stayed the punishment. The People
argue that resentencing under section 1172.75 applies only to defendants with a prior
prison term enhancement that was imposed and executed.7 We conclude the court erred
in finding defendant ineligible for relief under section 1172.75. Thus, we reverse the
denial order and remand for a full resentencing.
6 The minute order does not specify what “Prior 1” was and makes no specific reference to a prison prior under section 667.5, subdivision (b). Therefore, the court’s actions are not entirely clear.
7 We note that, although the record shows the court imposed the prison prior enhancement but struck the punishment, the parties rely on authorities that discuss whether section 1172.75 applies only to sentences that were imposed and executed, or also to sentences that were imposed and stayed.
4
A. Standard of Review
“The proper interpretation of a statute is a question of law we review de novo.”
(People v. Lewis (2021) 11 Cal.5th 952, 961.) Our fundamental task in construing a
statute “is to ascertain the Legislature’s intent so as to effectuate the law’s
purpose. [Citation.] We begin our inquiry by examining the statute’s words, giving them
a plain and commonsense meaning.” (People v. Mendoza (2000) 23 Cal.4th 896, 907
(Mendoza).) “[W]e look to ‘the entire substance of the statute . . . in order to determine
the scope and purpose of the provision . . . . [Citation.]’” (Id. at pp. 907-908.) “We must
harmonize ‘the various parts of a statutory enactment . . . by considering the particular
clause or section in the context of the statutory framework as a whole.’” (Id. at p. 908.)
B. Relevant Law
Prior to January 1, 2020, section 667.5, subdivision (b), required a sentencing
court to impose a one-year sentencing enhancement “for each prior separate prison term”
served by the defendant, unless the defendant remained free of both the commission of a
offense resulting in a felony conviction and from prison custody for a period of five
years. (Former § 667.5, subd. (b).) This sentencing enhancement is commonly known as
a prison prior enhancement.
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) limited a
sentencing court’s ability to impose a prison prior enhancement only to those cases when
the defendant’s past convictions were for certain specified sexually violent offenses.
(Stats. 2019, ch. 590, § 1.)
5
In 2021, the Legislature approved Senate Bill No. 483 for the stated purpose of
“ensur[ing] equal justice and address[ing] systemic racial bias in sentencing” by
“retroactively apply[ing] . . . Senate Bill [No.] 136 . . . to all persons currently serving a
term of incarceration in jail or prison for [a] repealed [prison prior] sentence
enhancement[].” (Stats. 2021, ch. 728, § 1.) To achieve this objective, Senate Bill
No. 483 added section 1171.1 to the Penal Code, a statutory provision that was
subsequently renumbered to section 1172.75 without substantive change. (Stats. 2021,
ch. 728, § 3; Stats. 2022, ch. 58, § 12.) For purposes of this opinion, we will refer to this
provision as section 1172.75.
Section 1172.75 prescribes the procedure for resentencing affected defendants.
Subdivision (a) states, “[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.” (§ 1172.75,
subd. (a).) The Secretary of the CDCR and the county correctional administrator must
first identify individuals serving terms that include no-longer-valid enhancements and
then provide certain information about those individuals to the sentencing court that
imposed the enhancement. (§ 1172.75, subd. (b).) Subdivision (c) instructs the court,
upon receipt of such information, to “review the judgment and verify that the current
judgment includes a sentencing enhancement described in [section 1172.75,]
subdivision (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).)
6
Section 1172.75, subdivision (d), outlines the procedure applicable to the
resentencing proceeding. It states that “[r]esentencing . . . shall result in a lesser sentence
than the one originally imposed as a result of the elimination of the repealed
enhancement, unless the court finds by clear and convincing evidence that imposing a
lesser sentence would endanger public safety. Resentencing . . . shall not result in a
longer sentence than the one originally imposed.” (§ 1172.75, subd. (d)(1).)
Subdivision (d) requires the court to “apply the sentencing rules of the Judicial Council
and apply any other changes in law that reduce sentences or provide for judicial
discretion so as to eliminate disparity of sentences and to promote uniformity of
sentencing.” (§ 1172.75, subd. (d)(2).) It also directs the court to “consider
postconviction factors, including, but not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that reflects whether age,
time served, and diminished physical condition, if any, have reduced the defendant’s risk
for future violence, and evidence that reflects that circumstances have changed since the
original sentencing so that continued incarceration is no longer in the interest of justice.”
(§ 1172.75, subd. (d)(3).)
C. Defendant is Entitled to a Full Resentencing
The dispute here “centers around the meaning of the word ‘imposed’ as used in
section 1172.75, subdivision (a), and, more specifically, whether a sentence enhancement
pursuant to section 667.5, subdivision (b) that was imposed and stayed for a non-
sexually-violent offense prior to January 1, 2020, is ‘a sentencing enhancement described
in subdivision (a)’ of section 1172.75.” (People v. Christianson (2023) 97 Cal.App.5th
We note that we respectfully disagree with one portion of Christianson.
Acknowledging that section 1172.75, subdivision (d)(1), requires a trial court to impose a
lesser sentence than originally imposed, Christianson rejected the notion that removing a
stayed term does not result in a lesser sentence. (Christianson, supra, 97 Cal.App.5th at
p. 312.) Rather, the court concluded that even a stayed term has potential consequences
to a sentence since the trial court “retains the ability to lift the stay and impose the term
10
under certain circumstance[s], such as if an alternately imposed term is invalidated.”
(Ibid.; accord, Saldana, supra, 97 Cal.App.5th at p. 1278 [stayed enhancement is part of
sentence and remains available if its execution becomes necessary].) We disagree with
this conclusion since a prison prior that was imposed before 2020, and was not for a
sexually violent offense, is now legally invalid under section 1172.75, subdivision (a);
thus, a court has no ability to lift a stay and impose such prison prior in the future.
In any event, in the instant case, there is no dispute defendant was serving time on
a judgment which includes a section 667.5, subdivision (b) enhancement that was not for
a sexually violent offense. Section 1172.75 expressly provides that if a “current
judgment includes an enhancement described in subdivision (a), the court shall recall the
sentence and resentence the defendant.” (§ 1172.75, subd. (c).) Applying Christianson
here, defendant is entitled to a full resentencing under section 1172.75. (§ 1172.75,
subds. (a) & (c); see Christianson, supra, 97 Cal.App.5th at pp. 314-315.) “By its plain
terms, section 1172.75 requires a full resentencing, not merely that the trial court strike
the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402
(Monroe); see People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is
stricken on review, on remand for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing discretion in light of the changed
circumstances’”].) At resentencing, the court shall “apply any other changes in law that
reduce sentences or provide for judicial discretion so as to eliminate disparity of
sentences and to promote uniformity of sentencing” (§ 1172.75, subd. (d)(2)) and
11
consider “postconviction factors” mitigating against continued incarceration (§ 1172.75,
subd. (d)(3)).
We recognize that the court in the instant case struck, rather than stayed, the one-
year punishment on the prior prison enhancement. The court informed defendant that “it
will show . . . you were sentenced to it, but that the punishment was stricken.”
Accordingly, the enhancement was part of the sentence and was included in the abstract
of judgment. The CDCR presumably identified defendant as eligible for relief because
the enhancement was included in the abstract of judgment. (Christianson, supra,
97 Cal.App.5th at p. 312 [“all that is required for the CDCR to identify an inmate under
section 1172.75, subdivision (b) is for the enhancement to be included in the abstract of
judgment”].)8 We note that, at the resentencing hearing, the court appears to have simply
imposed the enhancement and ordered the punishment stricken again. However, the
court was required to strike, that is vacate, the invalid enhancement and grant defendant a
full resentencing. (See id. at p. 314 [“the statutory scheme at issue here involves
statutory amendments expressly aimed at reducing sentences by retroactively eliminating
[the] sentencing enhancement”]; see also Monroe, supra, 85 Cal.App.5th at p. 402
8 Notably, since the filing of Christianson, the Sixth Appellate District has published an opinion agreeing with Christianson and further concluding that section 1172.75 “applies whenever a prison prior is included in a judgment, whether the prior is executed, stayed, or punishment is struck.” (People v. Espino (2024) 104 Cal.App.5th 188 (Espino), review granted Oct. 23, 2024, S286987.)
12
[“section 1172.75 requires a full resentencing, not merely that the trial court strike the
newly ‘invalid’ enhancements”].)
The People ask us to follow Rhodius, supra, 97 Cal.App.5th 38, which held that
the express language in section 1172.75, subdivision (d)(1), requiring the resentencing to
“result in a lesser sentence than the one originally imposed as a result [of] the elimination
of the repealed enhancement,” combined with the legislative history behind the
enactment of Senate Bill Nos. 136 and 483, require the conclusion that section 1172.75
does not invalidate prior prison term enhancements that were imposed but stayed.
(Rhodius, at pp. 43-49.) Rhodius reasoned as follows: “Section 1172.75
subdivision (d)(1)’s requirement that the resentencing shall result in a lesser sentence
than the one originally imposed necessitates the conclusion that the repealed
enhancement increased the length of the sentence. 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, as was the case here.” (Id. at p. 44.)
Although Rhodius was thoughtfully decided, we respectfully disagree with it.
Rather, we agree with Christianson’s conclusion that section 1172.75 applies to cases in
which the inmate’s abstract of judgment includes a section 667.5, subdivision (b)
enhancement “regardless of whether it is imposed or stayed.” (Christianson, supra,
97 Cal.App.5th at pp. 305, 312.)
Under Rhodius, the word “imposed” in section 1172.75, subdivision (a) means
“imposed and executed.” Thus, the “imposed and stayed” prior convictions in that case
13
were not “imposed” with the meaning of section 1172.75 subdivision (a). If that
interpretation is correct, then the prison prior convictions would not be legally invalid,
and the trial court should not have struck them.9 Yet, the trial court in Rhodius court did
strike them, strongly inferring their invalidity, and the Rhodius court affirmed the trial
court’s action. In our view, section 1172.75 either applies or does not apply. The
authority to strike the prior convictions comes only where section 1172.75 applies.
We also note that Rhodius is distinguishable since the court there “vacated the
sentence for defendant’s two section 667.5(b) priors and ordered them stricken.”
(Rhodius, supra, 97 Cal.App.5th at p. 41, italics added.) Thus, the only issue was
whether the court was required to give the defendant “a full resentencing hearing going
beyond striking his two priors.” (Ibid.) In contrast, the court here does not appear to
have vacated defendant’s prison prior enhancement at the resentencing hearing; rather, it
simply imposed the enhancement and struck the punishment again. Thus, the matter
must be remanded for the court to vacate the prison prior and fully resentence defendant
pursuant to section 1172.75, subdivisions (c) and (d).
Although the length of sentence does not change when a trial court vacates a now
invalid prior conviction which had previously been stricken, the defendant, nevertheless,
receives a significant benefit. To the extent the abstract of judgment will no longer show
the prison prior conviction, the consequences of defendant’s conviction are reduced. As
result of the court’s action, the case will no longer reflect the prior conviction if a court
9 This assumes the judgment was final as of January 1, 2020, as Senate Bill No. 136 on its own is not retroactive to final judgments. 14
assesses the appropriate disposition in any future case or on a violation of parole or
probation on the current case.
We note the People’s additional claim that the “Legislature’s language in the bill
[presumably Senate Bill No. 136] clearly contemplates that the relief available in Penal
Code section 1172.75 would be available to those ‘serving a term of incarceration’ for the
enhancement.” (Italics added.) The People reason that, where the punishment for a
prison prior has been stayed, there is no term of incarceration served for the
enhancement. However, we must look to the statute’s words and give them their plain
meaning. (Mendoza, supra, 23 Cal.4th at p. 907.) Section 1172.75 applies to those
persons “currently serving a term for a judgment that includes an enhancement described
in subdivision (a).” (§ 1172.75, subd. (b), italics added.)
Finally, a careful review of the statute reveals that the statute contains language
favorable to an interpretation consistent with that taken by Rhodius, and it also contains
language favorable to an interpretation consistent with that taken in Christianson. We
agree with the court in Espino, supra, 104 Cal. App. 5th 188, 198, that under the rule of
lenity, where the Legislature’s intent cannot be determined, courts must prefer the
interpretation that is most favorable to defendants.
In sum, we conclude that the trial court erred in finding defendant ineligible for
relief. The CDCR properly identified him as a person in custody “currently serving a
term for a judgment that includes an enhancement described in [section 1172.75,]
subdivision (a).” (§ 1172.75, subd. (b).) He was therefore entitled to a recall of his
sentence and a full resentencing under the terms of section 1172.75, which would include
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the application of “any other changes in law that reduce sentences or provide for judicial
discretion” (§ 1172.75, subd. (d)(2)) and consideration of “postconviction factors”
militating against continued incarceration (§ 1172.75, subd. (d)(3)).
DISPOSITION
The denial order is reversed, and the matter is remanded to the trial court with
instructions to recall defendant’s sentence and conduct a full resentencing proceeding
pursuant to section 1172.75, subdivisions (c) and (d).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
I concur:
CODRINGTON J.
16
[People v. Alatorre, E082854]
McKINSTER, Acting P. J., dissenting:
I continue to adhere to our decision in People v. Rhodius (2023) 97 Cal.App.5th
38, review granted February 21, 2024, S283169. (Estate of Sapp (2019) 36 Cal.App.5th
86, 109, fn. 9 [“Absent a compelling reason, the Courts of Appeal are normally loath to
overrule prior decisions from another panel of the same undivided district or from the
same division.”].) I see no functional difference between striking and staying punishment
on the enhancement. While Rhodius addressed one-year enhancements that were
imposed but stayed, its reasoning and analysis has equal, perhaps even more compelling,
application to enhancements that are imposed but the punishment stricken. In either case,
the additional one-year punishment for each enhancement imposed was never executed.
S286987, (dis. opn. of Lie, J.) [“So the concept of a sentence enhancement being
‘imposed’ when its punishment was stricken is not one I claim to comprehend.”].) To
interpret the law to apply to a person who was “lucky” enough to only have punishment
on his enhancement stricken but not to someone who was “unfortunate” enough to have
his enhancement completely stricken strains credulity.
Therefore, I would simply extend the holding in Rhodius to an imposed-but-
stricken enhancement as well as stayed one-year enhancements.
McKINSTER Acting P. J.
1
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant whose sentence includes a prior prison term enhancement under Penal Code section 667.5, subdivision (b)—even if the punishment for that enhancement was previously stayed or stricken—is entitled to a full resentencing under Penal Code section 1172.75.
Issues
Whether a defendant is eligible for resentencing under Penal Code section 1172.75 when the prior prison term enhancement was imposed but the punishment was stayed or stricken.
Whether Penal Code section 1172.75 requires a full resentencing hearing rather than merely striking the invalid enhancement.
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.”
“We conclude the court erred in finding defendant ineligible for relief under section 1172.75. Thus, we reverse the denial order and remand for a full resentencing.”
“all that is required for the CDCR to identify an inmate under section 1172.75, subdivision (b) is for the enhancement to be included in the abstract of judgment, regardless of whether it is imposed or stayed.”