California Court of Appeal Feb 14, 2025 No. E082894Unpublished
Filed 2/14/25 P. v. Varney CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082894
v. (Super. Ct. No. RIF110836)
AUSTIN CARTER VARNEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Siri Shetty, 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, Eric A. Swenson, and Heather M. Clark,
Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
The trial court found defendant and appellant Austin Carter Varney ineligible for 1 resentencing pursuant to Penal Code section 1172.75 because the sentencing
enhancement imposed for his having suffered one prior prison term (§ 667.5, subd. (b))
was imposed and stayed during his initial sentencing proceedings.
On appeal, defendant contends he is entitled to a full resentencing hearing
pursuant to section 1172.75, even though his prison priors (§ 667.5, subd. (b)) were
imposed and stayed. We agree that defendant is entitled to sentencing relief under section
1172.75 for his prior prison term enhancement which were imposed and stayed. We
therefore reverse the order and remand for the trial court to recall defendant’s sentence,
vacate his prison prior enhancement, and resentence him under section 1172.75,
subdivision (d).
II. 2 PROCEDURAL BACKGROUND
In December 2004, an information was filed charging defendant with murder
(§ 187, subd. (a); count 1); possession of a shotgun by a felon (§ 246.3; count 2); and
possession of a short barreled shotgun (§12020, subd. (a); count 3). As to count 1, it was
1 All future statutory references are to the Penal Code. 2 The underlying factual background is not relevant to the issues raised on appeal. We therefore dispense with a statement of facts.
2
alleged that defendant personally and intentionally discharged a firearm and proximately
caused great bodily injury or death (§ 12022.53, subd. (d)). The information also alleged
defendant had served a prior prison term (§ 667.5, subd. (b)) and suffered a prior serious
felony offense (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (c), (e)(1),
1170.12, subd. (c)(1)).
In May 2005, defendant pled guilty to possession of a firearm by a felon.
In June 2005, a jury convicted defendant of murder and possession of a short
barreled shotgun. The court found the prior conviction allegations true.
In August 2005, defendant was sentenced to a determinate term of four years, plus
a total indeterminate term of 75 years to life. The court imposed but stayed sentence on
the prior prison and prior serious felony enhancement.
The California Department of Corrections and Rehabilitation (CDCR) later placed
defendant on a resentencing list as being eligible for relief under section 1172.75. On
December 27, 2023, the trial court held a hearing pursuant to sections 1172.7, subdivision
(a) and 1172.75, subdivision (a). Following argument, the court denied defendant relief
pursuant to People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21,
2024, S283169 (Rhodius) and other case law from this court. The court determined
defendant was ineligible for full resentencing because the sentence on the prior prison
term enhancement had been imposed and stayed. After denying relief, the court ordered
the stayed prior stricken from the judgment and ordered the clerk to issue an amended
abstract of judgment. Defendant timely appealed.
3
III.
DISCUSSION
Defendant argues he is entitled to a full resentencing hearing pursuant to section
1172.75 regardless of whether the prior prison term enhancement was imposed and 3 stayed or imposed and executed. The People respond defendant is not entitled to a full
resentencing hearing because section 1172.75 does not apply to an imposed and stayed
section 667.5, subdivision (b) prior prison enhancement, and urge this court to follow the
reasoning of our previous decision in Rhodius and affirm the order denying resentencing
under section 1172.75.
Before January 2020, section 667.5, subdivision (b) permitted enhancements for
any prior prison term for a felony. (Stats. 2018, ch. 423, § 65.) Effective January 1,
2020, the Legislature amended subdivision (b) to limit prior prison term enhancements to
sexually violent offenses. (Stats. 2019, ch. 590, § 1.) The Legislature made this change
retroactive by adding section 1171.1 (Stats. 2021, ch. 728, § 3), which was later
renumbered to section 1172.75 without substantive change. (Stats. 2022, ch. 58, § 12.)
Under section 1172.75, “[a]ny sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5,” except for enhancements
for certain sexually violent offenses, “is legally invalid.” (§ 1172.75, subd. (a).) Section
3 The question of whether section 1172.75 applies to prior prison terms which were imposed and stayed is currently pending before our Supreme Court. (See Rhodius, supra, 97 Cal.App.5th 38, review granted; People v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted Mar. 12, 2024, S283547; People v. Christianson (2023) 97 Cal.App.5th 300 (Christianson), review granted Feb. 21, 2024, S283189.
4
1172.75 also provides that, if a prior prison term enhancement becomes invalid under the
section, a trial court “shall recall the sentence and resentence the defendant” (§ 1172.75,
subd. (c)), and, in doing so, “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).)
In Rhodius, supra, 97 Cal.App.5th 38, review granted, this court held that the
section 1172.75 resentencing provision does not apply when the trial court imposes and
stays a prison prior enhancement. Defendant urges this court to reject Rhodius, and
follow Christianson and Saldana, which concluded the converse. He argues that
subsequent decisions by other appellate courts hold, to the contrary, that section 1172.75,
as amended by Senate Bill No. 136 (2019-2020 Reg. Sess.) and Senate Bill No. 483 (Reg.
Sess. 2021-2022), broadly applies to enhancements imposed and stayed, such as in the
instant case. The other appellate courts focus primarily on the meaning of the term
“imposed,” within the meaning of section 1172.75, subdivision (a). (See People v.
Renteria (2023) 96 Cal.App.5th 1276, 1282 [the word “‘impose’” applies to
enhancements that are “‘“imposed and then executed,”’” as well as those that are
“‘“imposed and then stayed”’”]; Christianson, supra, 97 Cal.App.5th at p. 305, review
granted; Saldana, supra, 97 Cal.App.5th at p. 1276, review granted; People v. Mayberry
on the stayed enhancement could never subsequently be executed because the law has
invalidated the imposition of punishment on the enhancement unless it was for a
qualifying sexually violent offense, which does not here apply. (People v. Mayberry
(2024) 102 Cal.App.5th 665, 676.) Indeed, it now requires that the enhancement be
stricken. Thus, defendant was not entitled to a full resentencing hearing because he is no
longer serving a term of judgment that includes a valid section 667.5, subdivision (b)
enhancement, punishment on the enhancement could now never be imposed, and striking
the enhancement would not result in a lesser sentence than the one originally imposed.
To interpret the law to apply to a person who was “lucky” enough to only have his
enhancement stayed but not to someone who was “unfortunate” enough to have his
enhancement completely stricken strains credulity. Therefore, I would affirm the order
denying defendant a full resentencing hearing, but I would direct the court to strike the
prior prison term enhancement. McKINSTER Acting P. J.
1
AI Brief
AI-generated · verify before citing
Holding. Penal Code section 1172.75 applies to prior prison term enhancements that were imposed and stayed, entitling the defendant to a full resentencing hearing.
Issues
Does Penal Code section 1172.75 apply to prior prison term enhancements that were imposed and stayed?
Is a defendant entitled to a full resentencing hearing under section 1172.75 if their prior prison term enhancement was imposed and stayed?
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“We agree that defendant is entitled to sentencing relief under section 1172.75 for his prior prison term enhancement which were imposed and stayed.”
“we conclude contrary to Rhodius that section 1172.75 applies to defendant’s stayed prison prior enhancement.”
“striking a stayed enhancement results in a lesser sentence.”