People v. Dupree CA4/3

Filed 2/13/25 P. v. Dupree 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G063533

v. (Super. Ct. No. 96NF0620)

MARK ANTHONY DUPREE, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded. Sandra Gillies, 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, Steve Oetting and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Mark Anthony Dupree appeals from the trial court’s order denying his petition under Penal Code section 1172.751 for recall and resentencing. 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, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.” The issue presented by the case is whether section 1172.75 applies when, as in Defendant’s case, a sentencing enhancement under section 667.5, subdivision (b) was imposed but stayed. There is a split of authority on that issue. People v. Christianson (2023) 97 Cal.App.5th 300, 305, review granted February 21, 2024, S283189 (Christianson), holds that section 1172.75 applies to enhancement sentences which were imposed but stayed. People v. Rhodius (2023) 97 Cal.App.5th 38, 42, review granted February 21, 2024, S283169 (Rhodius), holds that a defendant is eligible for resentencing only if the prior prison term enhancements were both imposed and executed. We agree with the reasoning of Christianson that section 1172.75 applies equally to stayed enhancements and therefore conclude Defendant is entitled to a resentencing hearing. Accordingly, we reverse the order denying Defendant’s petition for recall and resentencing and remand to the trial court with directions. BACKGROUND In October 1996, a jury found Defendant guilty of one count (count 1) of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c).) In a separate proceeding, the trial court found to be true the enhancement