California Court of Appeal Feb 18, 2025 No. E083016Unpublished
Filed 2/18/25 P. v. Bowman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083016
v. (Super.Ct.No. RIF090904)
NORMA MARIA BOWMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
John L. Staley, 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, Christopher Beesley and
Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
1
At a hearing pursuant to Penal Code section 1172.75,1 the court found defendant
and appellant Norma Maria Bowman ineligible for a full resentencing hearing. On
appeal, defendant contends this court should reverse the order and remand the matter to
the trial court with directions to hold a full resentencing hearing. We affirm with
The court sentenced defendant to an aggregate term of imprisonment of 35 years.
The court imposed a 25-year term for the burglary offense and two, consecutive, five-
year terms for the prior serious felony conviction enhancements. The court stayed
punishment on the prior prison term enhancements. (Bowman, supra, E029174.)
Defendant appealed. This court affirmed the judgment. (Bowman, supra,
E029174.)
On March 14, 2019, the California Department of Correction and Rehabilitation
(CDCR) filed a letter indicating that the court’s most recent abstract of judgment
appeared to have invalidly reflected that the court imposed a five-year term on one of the
1 All further statutory references are to the Penal Code.
2
prior prison term enhancements.2 On March 20, 2019, the court issued a corrected
abstract of judgment in which it appears to have stricken two of the prior prison terms
and stayed imposition of punishment on the remaining two.
On December 28, 2023, at a hearing at which counsel represented defendant,3 the
court indicated that it had read and considered the decisions in People v. Rhodius (2023)
97 Cal.App.5th 38 (Rhodius), review granted February 21, 2024, S283169; People v.
Renteria (2023) 96 Cal.App.5th 1276 (Renteria); People v. Christianson (2023) 97
Cal.App.5th 300 (Christianson), review granted February 21, 2024, S283189; and People
v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted March 12, 2024,
S283547.
2 The clerk does appear to have inserted a “5” instead of an “S” next to one of the priors.
3 It is unclear from the record as originally filed how the matter initially came to the court’s attention. “[S]ection 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [the CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. [Citation.]” (People v. Cota (2023) 97 Cal.App.5th 318, 332; accord, People v. Newell (2023) 93 Cal.App.5th 265, 268; accord, People v. Burgess (2022) 86 Cal.App.5th 375, 382 [Lower and appellate courts lack jurisdiction over a request for section 1172.5 relief brought solely by a defendant].) On March 13, 2024, defendant’s appellate counsel filed a motion to augment the record with any document in which the CDCR identified defendant as a person eligible for section 1172.75 relief. We granted the request. The clerk of the superior court filed a certificate indicating that no such document could be located. On November 27, 2024, we requested the parties file supplemental letter briefs addressing whether there was any documentary evidence to reflect whether the CDCR initiated the proceedings and, if not, whether this court had jurisdiction over the appeal. On December 5, 2024, the parties stipulated that the CDCR had identified defendant as a person eligible for section 1172.75 relief on a list provided to the court on November 30, 2023. We accept the stipulation.
3
The People requested the court “incorporate the argument in People v. Archuleta,
RIF1605083.” (Case No. E082960.) The court asked defense counsel whether he wished
to “submit on the comments made in People v. Archuleta and the comments you
personally made in People vs. Bonachea?” Defense counsel responded, “Bonachea was a
different colleague of mine. But yes, I would like to incorporate those.”
The court replied, “So at this time, the request to continue to find out what the
Supreme Court will do if it recalls Rhodius and/or Christianson is denied for the reasons
articulated by the Court in Bonachea. [¶] The request for relief is denied by the Court
for the reasons articulated in the People vs. Archuleta.”4
On December 27, 2023, in Archuleta, the same court as in this case, presided over
another section 1172.75 hearing. Defense counsel argued that the statute permitted a full
resentencing hearing for any person who was serving a term of judgment that included a
stayed prior prison term enhancement.
The court asked, “How can they possibly be serving a term if the sentence is
stayed?” Defense counsel answered, “It’s serving a judgment that includes the
4 Defendant’s counsel observes, “[I]t is not possible to know the contents of the argument and rulings in those two cases.” It is, in fact, possible to know the contents of the argument and rulings in those two cases. Counsel in other cases have moved to augment the record to include the reporters’ transcripts from other cases, which had been incorporated as the rationale for the court’s ruling; this court has granted such motions in the past. On our own motion, we augmented the record to include the reporter’s transcript in Archuleta, case No. E082960. People v. Bonachea (Superior Court of Riverside County case No. BAF1801172) is irrelevant to the issue in this case because, as the court indicated, that court’s reasoning was with respect to whether the court should continue the matter until the California Supreme Court resolves the split of authority. The court denied the request to do so; defendant’s appellate counsel does not argue on appeal that this was error. Thus, that issue is not before us.
4
enhancement.” “Those persons in their custody [are] currently serving a sentence for a
judgment and a sentence based on an enhancement.”
The court responded, the “true aim of that statute was always just [to] get rid of
prison priors, which would fully . . . effectuate the goal of the legislature.” “We’re going
to apply it to everybody who is currently serving a term for one of these. We’re going to
erase those. That was the aim of the statute. Period.”
“As I’ve said before, were I to read it differently, folks who had their prison priors
stricken prior to the operative date of this statute don’t get relief even though they were
originally sentenced to it.” “[E]ven Christianson says the proper vehicle is to strike [the
enhancements], not to stay [them]. So Christianson absolutely creates an equal protection
problem.”
“So here’s my problem with Christianson. What if [the defendant’s] court had
stricken it instead of taking the plea and stayed it? What if they had stricken both . . . as
they should have? You would say then he’s just not entitled to relief?” Defense counsel
responded, “I think with what the statute says, it would not fit within [section] 1172[.75]
if his prison priors were stricken at the original sentencing.”
The court found Christianson flawed for its proposition that a court could always
subsequently impose a stayed prior prison term enhancement: “I find that analysis to be
specious. And the reason I find it to be specious is that could only have happened prior
to 2020 because as of 2020, you could not do that. As soon as the law changed in 2020,
if you got to resentencing, you now had a prison prior that was no longer authorized by
5
law. And they could not be resentenced.” “That prison prior at that point became
nothing more than a historical footnote . . . .”
“There’s no way either one of these prison priors could be imposed today.” “As of
2020 [Christianson’s] claim, their fear that that prison prior could then actually be
[imposed] is unfounded. Post 2020, any resentencing that would have to occur could not
include a now-invalid prison prior. That means that that abstract that includes the stayed
prison prior is nothing more than as I said before a footnote to history.”
The court continued, “There is nothing—there’s no difference between this person
and a person who appropriately had their 667.5(b) prior stricken other than there’s some
ink on a page that gives note to history because someone who admitted the prison prior
and it was appropriately stricken would not get” a full resentencing hearing. “And the
condition precedent to resentencing is that the defendant is currently suffering a harm as a
result of a 667.5(b) prior, and that harm is serving an additional sentence.”
The People concurred with the court and this court’s analysis in Rhodius: “They
have the more robust cogent and accurate analysis of the statutory intent as well as the
statutory construction. We think that imposed means imposed and executed. And that
does harmonize the statute and [is] the only way to harmonize [section 1172.75,
subdivision] (d)(1) specifically. And it also clarifies any ambiguity in serving time on
that enhancement or judgment.”
The court ruled that the defendant “was not serving time for a prison prior in a
manner contemplated by the statute. And for that reason, I am denying relief under this
6
statute.” The court struck the prior prison term enhancements: “They should be removed
completely from the abstract of judgment.” “I order an amended abstract of judgment
that does not show prison priors at all.” “I am ordering prepared an amended abstract of
judgement. And I’m nunc pro tuncing the decision to [strike] because . . . we were
directed to strike, not stay [the enhancements].”5
II. DISCUSSION
Defendant contends this court should reverse and remand the matter with
directions to the trial court to hold a full resentencing hearing. The People maintain we
should affirm the trial court’s order in reliance on Rhodius. We affirm with directions.
Senate Bill No. 483 (Senate Bill 483) (2021-2022 Reg. Sess.) added section
1171.14 to the Penal Code (Stats. 2021, ch. 728), which the Legislature subsequently
renumbered, without substantive change, as section 1172.75 (Stats 2022, ch. 58, § 12, eff.
June 30, 2022). (Rhodius, supra, 97 Cal.App.5th at p. 42, fn. 4.) “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 legally
invalid.’ [Citation.] Section 1172.75 instructs the CDCR to identify those persons in
their custody currently serving a term for a judgment that includes an enhancement under
section 667.5(b) (excluding sexually violent offenses) and provide such information to
the sentencing court that imposed the enhancement. [Citation.] Subsequently, the
5 The court in this case did not strike the prior prison term enhancements in any manner, let alone nunc pro tunc.
7
sentencing court ‘shall review the judgment and verify that the current judgment includes
a sentencing enhancement described in subdivision (a).’ [Citation.] ‘If the court
determines that the current judgment includes an enhancement described in subdivision
(a), the court shall recall the sentence and resentence the defendant.’ [Citation.]” (Id. at
p. 42.)
“Whether section 1172.75 entitles [defendant]—who is currently serving time on
an abstract of judgment that includes a stayed but now invalid section 667.5, subdivision
(b) enhancement—to a full resentencing is a question of law that we review de novo,
under well-settled standards of statutory interpretation. [Citations.]” (Christianson,
supra, 97 Cal.App.5th at p. 308.)
“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. To interpret
‘imposed’ as used in section 1172.75, subdivision (a), to include when a sentence was
‘imposed and stayed’ would require any sentencing court faced with an ‘imposed and
stayed’ enhancement to arbitrarily lower a sentence simply because the judgment
contained a stayed enhancement.” (Rhodius, supra, 97 Cal.App.5th at pp. 43-44; but see
People v. Espino (2024) 104 Cal.App.5th 188, 203, review granted Oct. 23, 2024,
8
S286987, (dis. opn. of Lie, J.) [“So the concept of a sentence enhancement being
‘imposed’ when its punishment was stricken is not one I claim to comprehend.”]; contra,
Renteria, supra, 96 Cal.App.5th at pp. 1282-1283 [Defendant entitled to full resentencing
hearing where section 667.5 enhancement was imposed and stayed]; accord,
Christianson, supra, 97 Cal.App.5th at p. 316, fn. 8; accord, Saldana, supra,
97 Cal.App.5th at p. 1278; accord, People v. Mayberry (2024) 102 Cal.App.5th 665, 674,
review granted Aug. 14, 2024, S285853; see People v. Gray (2024) 101 Cal.App.5th 148,
167 & fn. 14 [“Other courts to have considered this question have focused on the
meaning of the term ‘imposed,’ and have disagreed with Rhodius.”].)
Here, like in Rhodius, the trial court stayed punishment on all four prior prison
term enhancements.6 (Bowman, supra, E029174.) Thus, since defendant was not serving
a term of imprisonment that included a prior prison term enhancement and striking or
vacating the enhancement would not result in a lesser sentence than the one originally
imposed as required by section 1172.75, subdivision (d)(1), the court properly denied
defendant’s request for a full resentencing hearing. (Rhodius, supra, 97 Cal.App.5th at
p. 44; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant effectively argues that we are not bound by Rhodius. However,
“Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior
decisions from another panel of the same undivided district or from the same division.”
(Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9; but see Cal. Rules of Court, rule
6 Although the court appears to have later stricken two of the enhancements.
9
8.1115(e)(1) [“Pending review and filing of the Supreme Court’s opinion . . . a published
opinion of a Court of Appeal in the matter has no binding or precedential effect, and may
be cited for potentially persuasive value only.”].) Rhodius is a decision of this appellate
division.
Nonetheless, defendant essentially argues that the majority view of the appellate
courts set forth in Renteria, Christianson, and Saldana, comprise a compelling reason to
depart from this court’s decision in Rhodius. We disagree.
In analyzing the legislative history of Senate Bill 483, this court in Rhodius
observed that the Legislature was primarily concerned with providing relief to those who
had served time on rulings deemed unfair, on separating inmates from their families, and
on the costs to the state of incarceration. (Rhodius, supra, 97 Cal.App.5th at pp. 46-48.)
“The findings, costs, and ramifications of . . . Senate Bill 483 cited during the legislative
sessions presuppose inmates who are serving additional time as a result of the sentencing
enhancement under section 667.5[, subdivision] (b). The references to financial and
familial burdens do not logically follow if a defendant is not actually serving additional
time as the result of an imposed and executed sentence associated with a section 667.5[,
subdivision] (b) prior. As such, to interpret the statute to include enhancements that were
imposed and stayed would be contrary to the legislative intent and the plain language of
the statute.” (Id. at pp. 48-49.)
Here, since the court did not impose and execute sentence on the prior prison term
enhancements, striking or vacating them as anything other than an administrative
10
function would not promote the legislative concerns in passing Senate Bill 483; in other
words, because defendant was not serving time on the enhancements, striking them
would not provide a lessened term for defendant, would not enable him to reunify with
his family, and would not result in any cost savings to the state. We continue to agree
with this court’s decision in Rhodius and disagree with the courts in Renteria,
Christianson, Saldana, Mayberry, and Espino.
Moreover, as the court below noted, Christianson inaccurately reasoned that a
stayed prior prison term enhancement should be considered imposed because “the trial
court retains the ability to lift the stay and impose the term under certain circumstance,
such as if an alternately imposed term is invalidated.” (Christianson, supra, 97
Cal.App.5th at p. 312.) Contrary to Christianson’s assertion, a stayed or stricken prior
prison term enhancement could not now ever subsequently be imposed because the
Legislature invalidated the imposition of punishment on the enhancement unless it is for
a qualifying sexually violent offense. (People v. Mayberry, supra, 102 Cal.App.5th at p.
676 [“It is clear from the plain language of subdivision (a) of section 1172.75 that the
Legislature rendered sentence enhancements imposed pursuant to former subdivision (b)
of section 667.5 legally invalid, except where imposed for a qualifying sexually violent
offense.”]; People v. Espino, supra, 104 Cal.App.5th at p. 204 (dis. opn. of Lie, J.)
[“[E]ven if a now-invalid enhancement under former section 667.5(b) could be said to
possess some unidentified potential to affect a future sentence or trigger another collateral
consequence of some kind, this would be beyond the ambit of Senate Bill No. 483.” ].)
11
Here, like in Christianson, the underlying convictions upon which defendant’s
prior prison term enhancements were based were not for sexually violent offenses.
(Christianson, supra, 97 Cal.App.5th at p. 311.) Thus, punishment on the enhancements
here could never be legally imposed in the future.
Furthermore, as the court below also noted, to interpret the law to allow a full
resentencing hearing for a person who was “lucky” enough to only have punishment on
his enhancement stayed or stricken but not to someone who was “unfortunate” enough to
have his enhancement completely stricken strains credulity. (People v. Hardin (2024) 15
Cal.5th 834, 847 [“‘[T]he requirement of equal protection ensures that the government
does not treat a group of people unequally without some justification.’ [Citation.]”.) In
these circumstances, we see no functional difference between striking the punishment,
staying the punishment, or striking the enhancement in its entirety. Therefore, the court
properly denied defendant’s request for a full resentencing hearing.7
7 As the court below in Archuleta noted, a trial court may either impose or strike sentence on a prior prison term enhancement, any other sentence is unauthorized. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 [“Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken”]; Saldana, supra, 97 Cal.App.5th at p. 1275; People v. Thomas (2013) 214 Cal.App.4th 636, 640 [“Generally, the failure to impose a mandatory enhancement or strike it . . . is a jurisdictional error . . . .”].) “If a judge strikes the enhancement, it’s as if the fact of the enhancement never existed—it will not remain on the defendant’s criminal record nor will it affect them in any potential future sentencing.” (People v. Flores (2021) 63 Cal.App.5th 368, 383.) The problem in part is the use of the word “strike.” It would be more precise and in keeping with the language in California Supreme Court opinions to state that the enhancement is “vacated.” (See, e.g., People v. Morelos (2022) 13 Cal.5th 722, 770.) If the enhancement itself is vacated, it should not appear on the abstract of judgment. [footnote continued on next page]
12
III. DISPOSITION
The trial court is directed to strike or vacate the section 667.5, subdivision (b)
enhancements in their entirety. The court is further directed to issue a new minute order
and abstract of judgment reflecting the court’s order. The court is directed to forward a
copy of the new minute order and abstract of judgment to the CDCR. The court’s order
is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
I concur:
CODRINGTON J.
Here, the court neglected to strike the enhancements. There is no new abstract of judgment in the record. Thus, we shall direct the court below to strike or vacate the enhancements in their entirety but not nunc pro tunc as the court did in Archuleta.
amendments expressly aimed at reducing sentences” and requires a full resentencing “in
light of all associated sentencing reform”), review granted Feb. 21, 2024, S283189.)
To that end, the Legislature specified that a defendant could obtain a lesser
sentence based on “postconviction factors.” (§ 1172.75, subd. (d)(3).) At the
resentencing, the inmate can benefit from their “disciplinary record and record of
rehabilitation”; evidence that “age, time served, and diminished physical condition, if
any, have reduced [their] risk for future violence”; and evidence that “circumstances have
changed since the original sentencing so that continued incarceration is no longer in the
interest of justice.” (§ 1172.75, subd. (d)(3).) For the resentencing, the court placed a
presumption, like that it placed in section 1170, subdivision (b)(2), that the sentence will
not exceed the middle term absent facts in aggravation that the inmate has admitted or
that have been proved in court beyond a reasonable doubt. (§ 1172.75, subd. (d)(4).)
These resentencing goals apply just as well to those with stayed punishment on
their enhancements as they apply to those with executed punishment. In fact, if we
12
exclude those inmates with stayed punishment from section 1172.75 relief, we create
more sentencing disparities, not fewer.2
The disparity the majority’s view creates may be more discernible if one considers
this case as an example. Bowman is about 64 years old and has been in custody since
2000, serving her sentence of 35 years to life for burglary. Her sentence on the principal
count (25 years to life) was increased by ten years due to two mandatory “nickel priors”
(§ 667, subd. (a)(1)) that enhanced her imprisonment due to other burglary convictions in
1985 and 1990. Effective in 2019, however, a change in law “granted trial courts the
discretion to strike or dismiss the previously mandatory five-year prior serious felony
conviction enhancement under section 667, subdivision (a)(1).” (People v. Ellis (2019)
43 Cal.App.5th 925, 928.) If Bowman received a resentencing, she would have a chance
to ask the judge to dismiss one or both nickel priors in the furtherance of justice. (See
§ 1385, subd. (a).) Under section 1172.75, subdivision (d)(3), she might rely on her
conduct during her quarter-century in custody, her age, and other post-sentencing factors
to argue that she should be allowed to seek parole after 25 or 30 custody years, rather
than after 35.
2 Section 1172.75, however interpreted, leaves disparities, as inmates who received no prison prior enhancement at all do not receive a resentencing. Yet the Legislature wished to eliminate disparities between the sentences of those sentenced under old laws and those sentenced today. Including more (rather than fewer) inmates for resentencing serves that goal. And the majority’s interpretation creates additional disparities among the class of inmates with a prison prior, sorting them for the resentencing benefit based on whether their punishment was executed.
13
Yet under the majority’s view, Bowman is denied a resentencing solely because
her trial court stayed the one-year punishment on her prison priors. If the trial court had
executed punishment on one of those enhancements, not only would that punishment be
removed today, but Bowman would have a chance to argue that the trial court should
vacate the nickel priors as well. An inmate much like Bowman but who the sentencing
judge thought deserved more punishment—and thus refused to stay a prison prior—
would today have a chance to seek the more lenient sentence simply because their prison
prior enhancement was executed. This is not the uniformity in sentencing that section
1172.75, subdivision (d)(2) seeks. The majority’s interpretation of section 1172.75
contradicts the statute’s express purposes.
Every inmate with an “imposed and executed” prison prior receives relief under
section 1172.75, accomplishing the legislative policy of ensuring inmates do not serve
time on prison priors. But the legislative policy of allowing a resentencing in section
1172.75, subdivisions (d)(2), (d)(3), and (d)(4) applies equally to those with “imposed
and executed” and “imposed and stayed” prison priors. We undermine the uniform
sentencing goal of the statute if we deny resentencing to those with punishment stayed on
their enhancement.3
3 The Legislature recently again endorsed resentencings in this context. Effective at the beginning of 2025, a new section 1171 states that a trial court “has jurisdiction to modify every aspect of the defendant’s sentence” in a postconviction petition such as this one, so long as there is no more specific rule prohibiting doing so. (§ 1171, subd. (c) & (c)(2); see Assembly Bill No. 2483 (Stats. 2024, ch. 964, § 2, eff. Jan. 1, 2025).)
14
II
As discussed in Section I, the word “imposed” in subdivision (a), read either alone
or with the whole statute, is best interpreted as including both “imposed and executed”
and “imposed and stayed” enhancements. The majority relies on a single statutory
term—“lesser” sentence—that does not advance its argument that “imposed” is shorthand
for “imposed and executed.” Rather, the text conveys that all defendants with prison
priors imposed in their judgment are to have their sentence recalled and be resentenced.
Given the statutory text, we need not further parse section 1172.75’s legislative
history. Even so, because the majority asserts that the legislative intent conflicts with
interpreting section 1172.75 to include “imposed and stayed” enhancements (maj. opn.,
ante, at p. 10), I will address the legislative history.
Effective January 1, 2020, the Legislature established the Committee on Revision
of the Penal Code to study that Code and propose reforms. (Government Code §§ 8280,
8290.5.) Its first set of recommendations, published February 9, 2021, contained two
recommendations that became part of section 1172.75.4 The first recommendation was to
strike the prison prior enhancements retroactively. The second was to establish a judicial
process for “second look” resentencing, the Model Penal Code’s term for revisiting
inmates’ entire sentences (Committee on Revision of Penal Code, Annual Report and
Recommendations, supra, at p. 68). Each proposal became a different bill.
4 Committee on Revision of Penal Code, Annual Report and Recommendations, (Feb. 9, 2021) <https://perma.cc/TG5N-XNGL>, pages 48-51, 64-68.
15
First, on March 3, 2021, Senate Bill No. 483 was introduced to implement the
recommendation about prison prior enhancements.5 The first version of Senate Bill No.
483 strictly followed the committee recommendation and had no resentencing provision.
Rather, the statute’s subdivision (c) directed courts to “administratively amend the
abstract of judgment to delete that enhancement.” The proposal had no subdivision (d),
as would the final bill. There was no “lesser sentence” requirement, and courts had no
authorization to consider other changes in law. The initial bill analysis quotes the bill’s
author as stating that Senate Bill No. 483 is eliminating the enhancements “[a]s
recommended by the state’s Committee on Revision of the Penal Code.” (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 483, supra, hearing Apr. 27, 2021 for version
Mar. 3, 2021, p. 2.)
Meanwhile, on March 11, 2021, Assembly Bill No. 1540 (Assem. Bill No. 1540)
was introduced in the Assembly Committee on Public Safety to implement the “second
look” recommendation for defendants who law enforcement suggested for recall and
resentencing. The introduced version of Assem. Bill No. 1540 contained resentencing
provisions like those that the same committee would, four months later, import into
Senate Bill No. 483. In its proposed section 1170.03 (later adopted and then renumbered
as section 1172.1), Assem. Bill No. 1540 proposed resentencing to “eliminate disparity of
sentences and to promote uniformity of resentencing,” and it contained a description of
5 The substance of Senate Bill No. 483 was offered as an amendment replacing unrelated text of an existing bill. The same occurred with Assembly Bill No. 1540 discussed next.
16
the post-conviction factors that a court may consider. (Proposed § 1170.03, subds. (a)(2),
(a)(4).) The committee’s analysis of the bill discussed the Committee on Revision of the
Penal Code’s “second look” resentencing recommendations and stated that “[t]his bill is a
response to the Committee’s recommendations on resentencing.” (Assem. Com. on
Public Safety, Analysis of Assem. Bill No. 1540, as amended April 22, 2021, pp. 5-6.)
Senate Bill No. 483—the prison prior bill—passed the Senate and proceeded to
the Assembly Committee on Public Safety. There, an important change occurred. That
committee amended the bill to eliminate the “administrative” striking of enhancements
and replaced it with the recall and resentencing provisions now found in section 1172.75,
subdivision (d). (See Assem. Com. on Public Safety, Analysis of Assem. Bill No. 483, as
amended July 7, 2021, pp. 1-2 [explaining resentencing provisions].) The committee
adapted those provisions from Assem. Bill No. 1540, the “second look” resentencing bill.
A staff member from the Committee on Revision of the Penal Code testified before the
Assembly Committee on Public Safety in support of the amended bill on July 13, 2021,
stating that “as amended by the committee, it will ensure that fair sentencing hearings are
held when necessary” and “it will promote justice, rationality, uniformity in sentencing.”6
At that point, Senate Bill No. 483 no longer was about only eliminating enhancements; it
was also about the resentencing goals in the “second look” resentencing recommendation.
The Legislature enacted both Senate Bill No. 483 and Assem. Bill No. 1540,
providing similar resentencing provisions in each. Both current section 1172.75,
6 https://www.assembly.ca.gov/media/assembly-public-safety-committee- 20210713 [testimony of Natasha Minsker beginning at approximately 2:19:00].)
17
subdivision (d)(2) and section 1172.1, subdivision (a)(2) instruct courts to apply “changes
in law that reduce sentences or provide for judicial discretion so as to eliminate disparity
of sentences and to promote uniformity of sentencing.” Both current section 1172.75,
subdivision (d)(3) and section 1172.1, subdivision (a)(5) allow courts to consider
“postconviction factors, including, but not limited to, the disciplinary record and record
of rehabilitation of the defendant while incarcerated, evidence that reflects whether age,
time served, and diminished physical condition, if any, have reduced the defendant’s risk
for future violence, and evidence that reflects that circumstances have changed since the
original sentencing so that continued incarceration is no longer in the interest of justice.”
This legislative history, then, confirms that section 1172.75 reflects not just the
purpose of eliminating one-year prison prior enhancements (one proposal of the
Committee on Revision of the Penal Code) but also the purpose of revisiting the
sentences of persons sentenced under other laws that have been changed, or where post-
conviction factors might make a difference (the separate “second look” proposal).
Rhodius, however, relied on only a single piece of legislative history: a March 3,
2021, report from the Senate Public Works Committee, discussing the initial version of
Senate Bill No. 483. (See Rhodius, supra, 97 Cal.App.5th at pp. 46-48.) At that point,
the draft statute contained no resentencing provisions and required courts simply to delete
prison prior enhancements. That legislative history does not relate to the Assembly’s
July 2021 decision to amend the statute to require recall and resentencing and to
authorize courts to consider other changes in law and post-conviction conduct by creating
18
subdivision (d). Rhodius, and today’s opinion, address only legislative history that pre-
dates the existence of that subdivision.
This history of section 1172.75 provides another reason why “imposed” means
what the text states it does: a prison prior included in the judgment. By providing for
recall and resentencing while eschewing the proposal to simply strike the enhancements,
the Legislature’s intent was—as in section 1172.1—to allow deserving defendants to
benefit from resentencing, and there is no reason why those with “imposed and stayed”
enhancements are less likely to benefit than those with “imposed and executed” ones.
III
One final item: the majority directs the trial court to strike or vacate the prison
prior enhancements. (Maj. opn., ante, at pp. 11-13.) There is no authority for that.
These enhancements were not retroactively invalidated until the Legislature
declared them invalid in section 1172.75, subdivision (a). The only authority for doing
so is section 1172.75. If they do not fall under section 1172.75, then there is no authority
for addressing them. If they fall under section 1172.75, then there also is no authority to
“strike” them, as the statute requires that the court “shall recall the sentence and
resentence the defendant,” not strike the enhancements. (§ 1172.75, subd. (c).)
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The majority’s rationale for ordering the enhancements struck is that they cannot
be imposed in the future. (Maj. opn., ante, at pp. 11-12.) It is true that they cannot. But
the point of an “imposed and stayed” enhancement is that the sentence need not be
imposed again; rather, the court can lift the stay if another enhancement is reversed or
vacated. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130 [various firearms
enhancements are to be “imposed and stayed” so if the executed one is found invalid on
appeal, the others are “readily available”]; People v. Alford (2010) 180 Cal.App.4th
1463, 1469 [“if the unstayed sentence is reversed, a valid sentence remains extant”];
People v. Begnaud (1991) 235 Cal.App.3d 1548, 1553 [“When the principal term was
reversed, the stay was removed and the full middle term became the sentence”].)
Practically, there is no chance that Bowman’s stays would ever be removed. But the
majority’s approach is wrong in principle, as it orders a court to strike a stayed sentence
absent a law providing authority to do so. While it makes eminent sense to eliminate
Bowman’s prison prior enhancements, the statutory way to do so is what the Legislature
authorized in section 1172.75, subdivision (c): recalling her sentence and resentencing
her.
If Bowman had an executed prison prior enhancement in her judgment along with
her life sentence, the majority presumably would follow the statutory procedure and order
a recall and resentencing. The Legislature enacted that procedure in section 1172.75,
rejecting the initially proposed procedure of striking enhancements that the majority
applies to Bowman’s case. I am dissenting because I would follow the terms of the
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statute. Doing so is also more consistent with the statutory purpose of seeking uniform
sentencing under current laws. Under section 1172.75, all those with a prison prior
enhancement included in their judgment qualify for recall and resentencing.
RAPHAEL J.
21
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant whose prior prison term enhancements were imposed and stayed is not entitled to a full resentencing hearing under Penal Code section 1172.75, as the statute applies only to enhancements that were imposed and executed.
Issues
Whether a defendant with stayed prior prison term enhancements is entitled to a full resentencing hearing under Penal Code section 1172.75.
Whether the term 'imposed' in Penal Code section 1172.75, subdivision (a) includes enhancements that were imposed and stayed.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“Since defendant was not serving a term of imprisonment that included a prior prison term enhancement and striking or vacating the enhancement would not result in a lesser sentence than the one originally imposed as required by section 1172.75”
“The court properly denied defendant’s request for a full resentencing hearing.”
“We continue to agree with this court’s decision in Rhodius and disagree with the courts in Renteria, Christianson, Saldana, Mayberry, and Espino.”