California Court of Appeal Feb 13, 2025 No. E083299Unpublished
Filed 2/13/25 P. v. Valenzuela 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 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083299
v. (Super.Ct.No. INF1201315)
RICHARD ANDREW VALENZUELA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Daniel J. Kessler, 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, Daniel B. Rogers and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Richard Andrew Valenzuela pled guilty in 2015 to
burglary and admitted several prior conviction enhancements, including having served a
prior prison term pursuant to Penal Code section 667.5, subdivision (b).1 At sentencing,
the trial court stayed punishment on the section 667.5, subdivision (b), prior. In a
previous appeal, People v. Richard Andrew Valenzuela (March 8, 2016, E063342)
[nonpub. opn.] (Opinion), we affirmed the trial court’s decision to stay the section 667.5,
subdivision (b), prior. In 2023 defendant was identified by the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) as a defendant serving time in
prison who may be eligible for recall and resentencing relief under section 1172.75. The
trial court, relying on this court’s opinion in People v. Rhodius (2023) 97 Cal.App.5th 38,
review granted February 21, 2024, S283169 (Rhodius), denied him relief finding that the
prison prior was not “imposed” within the meaning of section 1172.75 so he was not
entitled to relief. Defendant appeals the order of the trial court and insists that he is
entitled to a full resentencing. We affirm the trial court’s ruling.
FACTUAL AND PROCEDURAL HISTORY2
On March 2, 2015, defendant pleaded guilty to one count of burglary (§ 459).
Defendant also admitted to having suffered three prior convictions within the meaning of
section 667, subdivisions (a), (c), and (e)(1), and 1170.12, subdivision (e)(1). He
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 We derive the factual and procedural background from the clerk’s and reporter’s transcripts in this case and from the Opinion. We need not provide the facts of the underlying crime as they are not relevant to the issues on appeal.
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admitted to having served one prior prison term within the meaning of section 667.5,
subdivision (b). At defendant’s sentencing hearing on April 3, 2015, the trial court found
no grounds to strike the prior convictions. Defendant was sentenced to 15 years plus 25
to life. The trial court also imposed a one-year enhanced term for defendant’s prison
prior, but stayed execution of that portion of his sentence.
Defendant appealed and a panel of this court remanded the matter in order for the
trial court to allow defendant to request to withdraw his guilty plea; and we ordered the
trial court to strike two of the section 667, subdivisions (a) priors, and two of the priors
under section 667, subdivisions (c) and (e)(1). This court rejected that the trial court must
impose or strike the prison prior; the trial court properly stayed the sentence on the prison
prior. On May 26, 2016, defendant’s oral motion to withdraw his plea was denied. A
new abstract of judgment was filed on June 9, 2016, reflecting a 25-years-to-life sentence
for the burglary; five years for one section 667, subdivision (a), prior; and the stayed
prison prior.
Defendant was identified by the Secretary of the CDCR as being in custody
serving a judgment that included an enhancement described in section 1172.75,
subdivision (a). On December 21, 2023, the trial court denied that defendant was entitled
to relief under section 1172.75. The minute order stated that the trial court had
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considered Rhodius, Renteria,3 Christianson,4 and Saldana,5 and found, relying on
Rhodius, that defendant was ineligible for resentencing. Defendant filed a notice of
appeal on February 20, 2024.
DISCUSSION
Defendant contends the trial court erred in finding him ineligible for resentencing
under section 1172.75.
Section 1172.75, subdivision (a), states that “[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
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
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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].) 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
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consider any “postconviction factors” militating against continued incarceration
(§ 1172.75, subd. (d)(3)).
At the original sentencing in the instant case, the sentencing court sentenced
defendant to one-year on his prior prison enhancement but stayed the punishment.
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 [“[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 . . . .”].)1
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
1 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.)
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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 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.2 Yet, the trial
court in Rhodius did strike them, strongly inferring their invalidity, and the Rhodius court
2 This assumes the judgment was final as of January 1, 2020, as SB 136 on its own is not retroactive to final judgments.
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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.
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.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1172.75 does not entitle a defendant to resentencing if the prior prison term enhancement was imposed but stayed, as the statute only applies to enhancements that were imposed and executed.
Issues
Whether the term 'imposed' in Penal Code section 1172.75, subdivision (a), includes sentencing enhancements that were imposed and stayed.
Whether a defendant is entitled to a full resentencing under section 1172.75 when the trial court previously stayed the punishment for a prison prior enhancement.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the principles of statutory construction dictate that the term ‘imposed’ as used in section 1172.75, applies only to sentences that are ‘imposed and executed.’”
“Section 1172.75 thus reserves resentencing for when a section 667.5, subdivision (b), penalty enhancement has been executed.”
“defendant was not entitled to a full resentencing hearing under section 1172.75 because the court imposed but struck punishment on the enhancement.”