California Court of Appeal Feb 7, 2025 No. E083061Unpublished
See dissenting opinion
Filed 2/7/25 P. v. Miller CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083061
v. (Super.Ct.No. CR67859)
HAROLD WILLIAM MILLER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
John F. Schuck, 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, A. Natasha Cortina and
Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 1999, a jury convicted Harold W. Miller of possession of a firearm by a felon.
(Pen. Code, § 12021, subd. (a)(1).) (Unlabeled statutory citations refer to the Penal
Code.) At a bench trial on prior conviction allegations, the trial court found that Miller
had two prison priors (former § 667.5, subd. (b)) and two strike priors (§ 667, subds. (c)
& (e)). The court sentenced Miller to 25 years to life in state prison pursuant to the three
strikes law and imposed and stayed two one-year sentences for Miller’s prison prior
enhancements.1
In 2022, the trial court received notice from CDCR that Miller was serving a term
for a judgment that included a prison prior enhancement that is now invalid under section
1172.75. In December 2023, the court held a hearing and declined to strike the
enhancements and to resentence Miller, finding that his imposed and stayed prison priors
“do not fit within the legitimate ambit of the statute.”
On appeal, Miller argues that section 1172.75 applies to defendants who have
prison prior enhancements that were imposed and stayed. We disagree.
Section 1172.75, subdivision (a), provides that “[a]ny sentence enhancement that
was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5,
1 The People filed a request for judicial notice on July 29, 2024. We grant that request and take judicial notice of the reporter’s transcript in Miller’s 1999 sentencing hearing (Riverside Superior Court case No. BAF002073) and the reporter’s transcript of a postjudgment proceeding in People v. Chlad (E083222), which are attached to the People’s request. We have previously taken judicial notice of the declarations of Aimee Vierra and David McKinney, filed in case No. E082642, and augmented the record in this case to include the California Department of Corrections and Rehabilitation (CDCR) list dated June 16, 2022, listing individuals eligible for relief under section 1172.75. Miller is listed on page 23 of that document.
2
except for any enhancement imposed for a prior conviction for a sexually violent offense
. . . is legally invalid.” Section 1172.75, subdivision (b), requires the Secretary of CDCR
and the administrators for each county jail to “identify those persons in their custody
currently serving a term for a judgment that includes an enhancement described in
subdivision (a)” and to provide certain information about those individuals “to the
sentencing court that imposed the enhancement.” Upon receiving that information, the
trial court “shall recall the sentence and resentence the defendant” if the court
“determines that the current judgment includes an enhancement described in
subdivision (a).” (§ 1172.75, subd. (c).) If the court determines that the individual’s
judgment includes such an enhancement, the defendant’s resentencing “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.” (§ 1172.75, subd. (d)(1).)
The case law is currently split on the issue of whether section 1172.75 applies to
prison prior enhancements that were imposed but stayed. People v. Rhodius (2023) 97
Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius), held that
“imposed” in subdivision (a) of section 1172.75 must be interpreted to mean “imposed
and executed” in order to make sense of the requirement in section 1172.75, subdivision
(d)(1), that resentencing must result in “a lesser sentence than the one originally imposed
as a result of the elimination of the repealed enhancement.” (Rhodius, at pp. 43-45.)
3
The rest of the appellate decisions to consider the issue have concluded that
section 1172.75 applies regardless of whether the imposed prior prison term enhancement
was executed or stayed. (People v. Renteria (2023) 96 Cal.App.5th 1276; People v.
[Recall and resentencing is only available when prison prior enhancement is imposed and
executed.].)
I generally agree with the Christianson decision, which in my view sets forth the
correct statutory interpretation of section 1172.75. (See Christianson, supra,
97 Cal.App.5th at pp. 311-315.) Section 1172.75, subdivisions (a) and (c), provide that a
defendant currently serving time on a judgment which includes a section 667.5,
subdivision (b) enhancement imposed before January 1, 2020, is entitled to a full
resentencing hearing.
The court in Christianson explicated that, “[o]n its face, the word ‘imposed,’ in
this context, is at least somewhat ambiguous. As our high court has explained, ‘it is
important to understand that the word “impose” applies to enhancements that are
“imposed and then executed” as well as those that are “imposed and then stayed.
However, as a practical matter, the word ‘impose’ is often employed as shorthand to refer
to the first situation, while the word ‘stay’ often refers to the latter.” ’ ” (Christianson,
supra, 97 Cal.App.5th at p. 311.)
Despite this apparent ambiguity, the Christianson court rejected the People’s
claim that the Legislature intended the word “ ‘imposed,’ ” as used in section 1172.75, to
be limited to enhancements that were imposed and executed. (Christianson, supra,
97 Cal.App.5th at p. 311.) Further, as the court explained in Christianson, “[s]ection
1172.75 requires the CDCR to identify all inmates ‘currently serving a term for a
judgment that includes an enhancement described in subdivision (a).’ [Citation.] A
2
judgment may include a sentence that has been imposed but suspended or stayed.
[Citation.] Thus, by its plain language, 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. Had the
Legislature intended for the language in subdivision (b) to limit the identification to those
inmates that would necessarily be required to serve an additional term based on the
enhancement, it certainly could have done so.” (Christianson, supra, 97 Cal.App.5th at
pp. 311-312.)
The court in Christianson noted that “[t]he sentencing court must then ‘verify that
the current judgment includes a sentencing enhancement described in subdivision (a).’ ”
(Christianson, supra, 97 Cal.App.5th at p. 312; § 1172.75, subd. (c).) The court
continued as follows: “At this point, the incorporation of subdivision (a) requires that the
current judgment include a sentencing enhancement imposed pursuant to section 667.5,
subdivision (b). However, the use of the word ‘verify’ suggests that the sentencing court
is doing just that, verifying that the individual the CDCR identified is in fact an
individual described by the statute, not looking to see if the inmate meets an additional
requirement (i.e., that the enhancement is imposed and not stayed). It does not follow
logic or reason to read these two subdivisions together in a manner that would require the
CDCR to identify a larger class of inmates—all those serving time on a judgment that
include a now invalid enhancement—only for the trial courts to then look
3
at the same abstracts of judgment available to the CDCR to determine whether the
previous court imposed additional time for, or stayed, the relevant enhancements.”
(Christianson, at p. 312.)
Finally, Christianson observed that the overarching “statutory scheme at issue
here involves statutory amendments expressly aimed at reducing sentences by
retroactively eliminating a sentencing enhancement described as exacerbating ‘existing
racial and socio-economic disparities in our criminal justice system.’ ” (Christianson,
supra, 97 Cal.App.5th at p. 314.) The court noted that the resentencing procedures set
forth in the statutory scheme promoted this legislative goal insofar as they “require that
the trial court conduct a full resentencing for those defendants impacted by the now
invalid enhancement in light of all associated sentencing reform.” (Ibid.) Given this
legislative objective, the Christianson court inferred that the Legislature presumably
“intended to provide broad relief to all defendants impacted by the now invalid section
667.5, subdivision (b) enhancements.” (Ibid.)
I 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 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
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sentence and remains available if its execution becomes necessary].) I 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 a 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 [“[W]hen 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 shall
consider any “postconviction factors” militating against continued incarceration
(§ 1172.75, subd. (d)(3)).
5
At the original sentencing in the instant case, the sentencing court sentenced
defendant to one-year punishment on each of defendant’s prior prison enhancements but
stayed the punishment. Accordingly, the enhancement were part of the sentence and
were 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 [“[A]ll 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 . . . .”].)2
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. 42-49.) 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
2 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, 194 (Espino), review granted Oct. 23, 2024, S286987.)
6
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, I respectfully disagree with it.
Rather, I 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
were not “imposed” within the meaning of section 1172.75, subdivision (a). If that
interpretation is correct, then the prison prior convictions in that case would not be
legally invalid, and the trial court in Rhodius should not have struck them.3 Yet, the trial
court in Rhodius did strike them, strongly inferring their invalidity, and the Rhodius court
affirmed the trial court’s action. In my view, section 1172.75 either applies or does not
apply. The authority to strike the prior convictions comes only where section 1172.75
applies.
Although the length of sentence does not change when a trial court vacates a now
invalid prior conviction that had previously been stayed, the defendant, nevertheless, will
3 This assumes the judgment was final as of January 1, 2020, as SB 136 on its own is not retroactive to final judgments.
7
receive a significant benefit. To the extent the abstract of judgment will no longer show
the prison prior convictions, the consequences of defendant’s plea are reduced. As
result, the case will no longer reflect the prison prior convictions if a court assesses the
appropriate disposition in any future case or on a violation of parole on the current case.
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. I agree
with the court in Espino, supra, 104 Cal. App. 5th at p. 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, I 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
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)). I would reverse the
denial order and remand to the trial court for a full resentencing hearing pursuant to
section 1172.75, subdivisions (c) and (d).
FIELDS
J.
8
AI Brief
AI-generated · verify before citing
Holding. Penal Code section 1172.75 does not apply to prison prior enhancements that were imposed but stayed, as the statute's reference to "imposed" enhancements refers only to those that were imposed and executed.
Issues
Does Penal Code section 1172.75 apply to prison prior enhancements that were imposed and stayed?
Did the trial court err in declining to strike stayed prison prior enhancements under section 1172.75?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“A defendant as to whom a prison prior enhancement was imposed but stayed is not serving a term of incarceration in jail or prison for that enhancement, so the Legislature did not intend to provide retroactive relief to such a defendant.”
“Therefore, in subdivision (a) of section 1172.75, the Legislature must have used “imposed” as shorthand for “imposed and executed.””