People v. Gallegos CA2/6

Filed 1/6/25 P. v. Gallegos CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B334097 (Super. Ct. No. 2019017979) Plaintiff and Respondent, (Ventura County)

v.

JUAN DE DIOS GALLEGOS III,

Defendant and Appellant.

Juan De Dios Gallegos was convicted, by jury, of the second degree murder of Michael James Holley. He was sentenced to a term of 36 years to life including, among other enhancements, a one-year enhancement for having served a prior prison term that was imposed and stayed by the trial court. (Pen. Code, § 667.5, subd. (b).)1 We affirmed the conviction in an unpublished opinion. (People v. Gallegos, Dec. 16, 2020,

1 Unless otherwise stated, all statutory references are to

the Penal Code.

B303623.) Three years later, the California Department of Corrections and Rehabilitation identified appellant as an individual potentially eligible for resentencing under section 1172.75. After appointing counsel and holding a hearing, the trial court declined to resentence appellant. Appellant contends the trial court erred. We reverse. Facts Appellant used his pickup truck to intentionally run down Michael Holley, who had been standing in an alley talking with a couple of friends. Appellant drove away without stopping. Holley died from his injuries. Discussion Appellant contends he is entitled to a “full resentencing” under section 1172.75 because his original sentence includes a one-year section 667.5, subdivision (b) prior prison term enhancement. Respondent contends appellant is not eligible for resentencing because the trial court stayed the enhancement term. The question whether section 1172.75 requires resentencing where the enhancement term is imposed and stayed is currently pending before our Supreme Court in People v. Rhodius (2023) 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169 (Rhodius) and People v. Christianson (2023) 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189. Rhodius held that section 1172.75 authorizes resentencing where a prior prison term enhancement has been imposed and executed, but not where the enhancement is imposed and stayed. Christianson reached the opposite conclusion, holding that the statute requires resentencing where the enhancement has been imposed and stayed. We agree with Christianson.