People v. Cross CA1/1

Filed 1/24/25 P. v. Cross CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A170168 v. TERRELL A. CROSS, (Alameda County Super. Ct. No. 140163) Defendant and Appellant.

MEMORANDUM OPINION1 Defendant Terrell Cross appeals from a trial court order modifying the judgment under Penal Code section 1172.75 to strike four one-year enhancements for prior prison terms.2 He claims, and the Attorney General concedes, that the court erred by failing to conduct a full resentencing. We agree with the parties that the matter must be remanded for resentencing. Based on crimes Cross committed in 1999, a jury convicted him of second degree murder of John McClendon, possession of a firearm by a felon, and two counts of assault with a deadly weapon. The jury also found true various enhancement allegations, including that Cross personally and

1 We resolve this case by a memorandum opinion pursuant to

California Standards of Judicial Administration, section 8.1(2). 2 All further statutory references are to the Penal Code.

intentionally discharged a firearm causing death under section 12022.53, subdivision (d), and had at least four prior prison terms under former section 667.5, subdivision (b).3 The trial court sentenced him to a total term of 54 years to life in prison, and this division affirmed the judgment in 2004. (People v. Cross (Oct. 12, 2004, A102451) [nonpub. opn.].) Effective January 1, 2022, Senate Bill No. 483 (2021–2022 Reg. Sess.) added section 1171.1, later renumbered without substantive change as section 1172.75. (People v. Monroe (2022) 85 Cal.App.5th 393, 399.) Under section 1172.75, subdivision (a), “[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.” Upon being informed that a person is “currently serving a term for a judgment that includes [such] an enhancement,” the trial court “shall recall the sentence and resentence the defendant.” (§ 1172.75, subds. (b) & (c).) On March 5, 2024, the trial court held a hearing in this matter under section 1172.75. Cross appeared remotely and was represented by counsel. The trial court asked what the parties’ “proposal” was. Cross’s counsel stated that since the prosecutor was “unwilling to exercise any [resentencing] discretion . . . at this time,” Cross was “for now . . . asking for the Court to just strike the one-year enhancements and leave everything as it is.” Cross’s counsel also asked the court to consider striking a $5,000 restitution fine.