People v. Garcia CA4/3

Filed 12/13/24 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G063631

v. (Super. Ct. No. 10NF3235)

VICTOR ROBERT GARCIA, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded with directions. Sally Patrone Brajevich, 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, Melissa A. Mandel and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Except for certain sex offenses, the Legislature has generally determined that one-year prison priors “imposed prior to January 1, 2020,” 1 are “legally invalid.” (Pen. Code, § 1172.75, subd. (a). italics added.) The Legislature has further provided that if a defendant’s sentence “includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).) The sole issue in this appeal is whether section 1172.75 applies when a trial court imposes, but then strikes a prison prior for the purposes of sentencing. Our Supreme Court has taken up this issue and will ultimately have the last word. But in the meantime, we agree with the only published opinion on the issue and hold “that section 1172.75 should be interpreted to apply whenever a prison prior was imposed, whether punishment was executed, stayed, or struck.” (People v. Espino (2024) 104 Cal.App.5th 188, 194 (Espino), review granted Oct. 23, 2024, S286987.) Here, defendant Victor Robert Garcia petitioned for relief under section 1172.75. The trial court denied the petition because at the time of sentencing, the court imposed his three prison priors, but then struck them for purposes of sentencing. In accordance with Espino, we reverse the trial court’s order and remand with directions to resentence Garcia.