California Court of Appeal Feb 21, 2025 No. E083052Unpublished
Filed 2/21/25 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083052
v. (Super.Ct.No. CR47377)
JOSEPH GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
Heather E. Shallenberger, 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, Melissa A. Mandel and Joseph
C. Anagnos, 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 Joseph Garcia 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 directions.
On March 29, 1994, a jury convicted defendant of second degree murder (§ 187,
count 1) and assault with a firearm (§ 245, subd. (a), count 2). The jury additionally
found true allegations that defendant committed both offenses for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)) and that a principal was armed with a firearm
(§ 12022, subd. (a)(1)). Defendant subsequently admitted that he had suffered two prior
serious felony convictions (§ 667, subd. (a)) and a prior prison term (§ 667.5, subd. (b)).
(People v. Guillen (Feb. 2, 1996, E014756) [nonpub. opn.] (Guillen); People v. Garcia
(Dec. 8, 2022, E077916) [nonpub. opn.] (Garcia).)
The court thereafter sentenced defendant to an aggregate term of imprisonment of
26 years to life. The court imposed a sentence of 15 years to life for the murder, one year
consecutive on the firearm enhancement, and five years consecutive for each of the two
prior serious felony conviction enhancements. The court imposed the midterm of three
years concurrent on the assault offense, one year concurrent on the attached firearm
enhancement, and two years concurrent on the attached gang enhancement. The court
1 All further statutory references are to the Penal Code.
2
stayed imposition of sentence on the prior prison term enhancement.2 (Guillen, supra,
E014756; Garcia, supra, E077916.)
Defendant appealed. This court affirmed the judgment. (Guillen, supra,
E014756; Garcia, supra, E077916.)
In 2019, defendant filed a petition for resentencing pursuant to former section
1170.95,3 which the court denied after holding an evidentiary hearing. Defendant
appealed. This court affirmed the court’s order denying the petition. (Garcia, supra,
E077916.)
On September 19, 2022, the court appointed counsel for defendant in this matter.4
After numerous continuances, on December 21, 2023, at a hearing at which counsel
2 There were numerous irregularities regarding sentencing, which the court repeatedly attempted to fix over the ensuing years. In all those attempts, the court stayed imposition of punishment on the prior prison term enhancement. However, the January 24, 2024, eighth amended abstract of judgment reflects that the court resentenced defendant to the low term of two years concurrent on the assault offense and struck punishment on the prior prison term enhancement.
3 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
4 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 [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].) “Of course, ‘the defendant . . . bears the burden to provide a record on appeal which affirmatively shows that there was error below, and any uncertainty in the record must be resolved against the defendant.’ [Citation.]” (People v. [footnote continued on next page]
3
represented defendant, 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, 1282-1283 (Renteria);
People v. Christianson (2023) 97 Cal.App.5th 300, 311 (Christianson), review granted
February 21, 2024, S283189; and People v. Saldana (2023) 97 Cal.App.5th 1270, 1275
(Saldana), review granted March 12, 2024, S283547.5
The court found defendant ineligible for resentencing and denied defendant’s
“motion.” The court vacated the previous “sentence” on defendant’s prior prison term
and then struck punishment on the enhancement.
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 (Sen. Bill 483) (2021-2022 Reg. Sess.) added section 1171.1
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
Moore (2021) 68 Cal.App.5th 856, 866; ibid. [“Because appellant has failed to provide an adequate record for review, his claim fails. [Citation.]”].) Here, this court satisfied defendant’s burden of producing a record that establishes the proceeding below was initiated by the CDCR. On our own motion, we took judicial notice of a CDCR list from another case, which identifies individuals eligible for section 1172.75 relief; defendant’s name appears on that list.
5 The hearing was unreported.
4
(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 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.]” (Rhodius, 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
5
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 p. 44; but see
People v. Espino (2024) 104 Cal.App.5th 188, 203, review granted Oct. 23, 2024,
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 the prior prison term
enhancement.6 (Guillen, supra, E014756; Garcia, supra, E077916.) Thus, since
defendant was not serving a term of judgment 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
6 Although we note that on January 24, 2024, the court struck punishment on the prior prison term enhancement.
6
(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
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
7
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 sentence on the prior prison term
enhancement, striking it as anything other than an administrative function would not
promote the legislative concerns in passing Senate Bill 483; in other words, because
defendant was not serving time on the enhancement, striking it 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.
8
Moreover, 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
then nor now ever subsequently be imposed because the Legislature has 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, fn. omitted (dis. opn. of Lie, J.) [“[E]ven if a
now-invalid enhancement under former section 667.5[, subdivision] (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.” ].)
Here, like in Christianson, the underlying conviction upon which defendant’s prior
prison term enhancement is based is not for a sexually violent offense. (Christianson,
supra, 97 Cal.App.5th at p. 311.) Thus, the enhancement here could never be legally
imposed in the future.
9
Furthermore, 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
[“‘[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
III. DISPOSITION
The trial court is directed to strike the section 667.5, subdivision (b) enhancement
in its entirety, rather than merely punishment on the enhancement. The court is further
directed to issue a new minute order and abstract of judgment reflecting the court’s order.
7 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[, subdivision] (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.) Here, the latest court to reimpose sentence struck punishment on the enhancement. There is no new abstract of judgment in the record. In an abundance of caution, we shall direct the court below to strike the enhancement in its entirety.
10
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.
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
In this case, the majority denies Garcia a resentencing solely because his trial court
stayed the one-year punishment on his prison prior. If the trial court had executed
punishment on that enhancement, Garcia’s sentence would be recalled and he would be
resentenced without that enhancement and have a chance to argue for a more favorable
sentence. An inmate much like Garcia but who had an initial sentence that included an
executed prison prior would today have a fresh chance at sentencing without that
enhancement. 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
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
sentencing goal of the statute if we deny resentencing to those with punishment stayed on
their enhancement.3
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
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).)
4 Committee on Revision of Penal Code, Annual Report and Recommendations, (Feb. 9, 2021) <https://perma.cc/TG5N-XNGL>, pages 48-51, 64-68.
14
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.
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
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.
15
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
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
6 https://www.assembly.ca.gov/media/assembly-public-safety-committee- 20210713 [testimony of Natasha Minsker beginning at approximately 2:19:00].)
16
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,
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,
17
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
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. 10-11.) 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).)
18
An “imposed and stayed” enhancement is a part of a sentence, and it can be
executed by the court lifting the stay when 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 Garcia’s stay 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. Likewise, the trial court lacked authority to
strike the stayed punishment it had imposed many years ago, as it did after it denied
Garcia a resentencing. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 [judgment is
orally pronounced by the court at sentencing].) While it makes eminent sense to
eliminate Garcia’s prison prior enhancements, the statutory way to do so is what the
Legislature authorized in section 1172.75, subdivision (c): recalling his sentence and
resentencing him.
If Garcia had an executed prison prior enhancement in his judgment along with his
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
19
applies to Garcia’s case. I am dissenting because I would follow the terms of the 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.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant whose prior prison term enhancement was imposed and stayed is not entitled to a full resentencing hearing under Penal Code section 1172.75, as the statute only applies to enhancements that were imposed and executed.
Issues
Whether a defendant is entitled to a full resentencing hearing under Penal Code section 1172.75 when their prior prison term enhancement was imposed but stayed.
Whether the term 'imposed' in Penal Code section 1172.75, subdivision (a) includes enhancements that were imposed and stayed.