California Court of Appeal Mar 3, 2025 No. E083241Unpublished
Filed 3/3/25 P. v. Lacy CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083241
v. (Super. Ct. No. INF1601466)
ROY DONOVAN LACY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Richard Jay Moller, 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
I.
INTRODUCTION
The trial court found defendant and appellant Roy Donovan Lacy ineligible for 1 resentencing pursuant to Penal Code section 1172.75 because the sentencing
enhancements imposed for his having suffered three prior prison terms (§ 667.5, subd.
(b)) were stricken during his initial sentencing proceedings.
On appeal, defendant contends trial courts must conduct full resentencing hearings
pursuant to section 1172.75 for every defendant whose prison sentence includes a prior
prison term enhancement under section 667.5, subdivision (b) regardless of whether the
enhancement was originally executed, stricken or stayed. We disagree. Because the
record indicates no prison prior enhancements were imposed at defendant’s sentencing,
defendant is ineligible for resentencing under section 1172.75, subdivision (d). We
therefore affirm the trial court’s order denying defendant’s request for resentencing under 2 section 1172.75.
1 All future statutory references are to the Penal Code. 2 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 People v. Rhodius (2023) 97 Cal.App.5th 38 (Rhodius), review granted February 21, 2024, S283169; 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.)
2
II. 3 PROCEDURAL BACKGROUND
In November 2016, defendant pled guilty to four counts of robbery (§ 211) and
admitted that he had suffered two prior strike convictions (§§ 667, subds. (c), (e)(1),
1170.12, subd. (c)(1)) and two prior serious felony convictions (§ 667, subd. (a)).
Defendant’s plea agreement also indicated that defendant would plead guilty to three
The trial court subsequently held a hearing on defendant’s eligibility for
resentencing under section 1172.75. The court declined to recall defendant’s sentence
and resentence him under section 1172.75. The court reasoned that defendant was not
serving time for a prior prison term as they were stricken and not stayed.
Defense counsel responded: “But it . . . appears that the Court didn’t act on all
three because it did not actively say the three are stricken or the three are stayed. It says
the one is stricken.” The trial court thereafter read the transcript of the plea colloquy and
concluded: “This is abundantly clear from this record. The defendant was sentenced to
absolutely no prison prior. Let me repeat that. The defendant was sentenced to
absolutely no prison prior. There is ambiguity in the language that was used. The judge
did strike a prison prior. It is clear that the judge intended to strike all of the prison
priors. The judge did not specifically say that he was striking the two alleged prison
6
priors that represented the same prison commitment. [¶] Nevertheless, the judge did not
sentence [defendant] to a single second for a prison prior. The entirety of the sentence is
attributable to four Counts of 25 years to life and both nickel priors being imposed
appropriately, at the time, to each and every consecutive indeterminate term, resulting in
exactly what the judge articulated, 140 years to life.” The trial court ordered that an
amended abstract of judgment be produced without the prison prior enhancements and
specifically instructed the court clerk on filling out the amended abstract. Defendant
timely appealed.
III.
DISCUSSION
Defendant argues that the trial court erred by failing to recall his sentence and
resentence him under subdivision (d) of section 1172.75 because his judgment includes
the now-invalid prior prison term enhancements, even though they were not imposed or 4 stayed. The People argue that because the prison priors were never imposed and the
punishment for the prison priors was struck, not stayed, defendant is not entitled to
resentencing under section 1172.75. We agree with the People.
“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to
impose a one-year sentence enhancement for each true finding on an allegation the
defendant had served a separate prior prison term and had not remained free of custody
4 Because it is unnecessary for the resolution of this appeal, we deny defendant’s request to take judicial notice of the legislative history of Senate Bill No. 483.
7
for at least five years.” (People v. Burgess (2022) 86 Cal.App.5th 375, 379-380.) On
January 1, 2020, after defendant’s sentencing hearing, Senate Bill No. 136 amended
section 667.5, subdivision (b) to allow for the imposition of a one-year prior prison term
enhancement only for prior convictions based upon specified sexually violent offenses.
(Stats. 2019, ch. 590, § 1.)
In 2022, the Legislature enacted Senate Bill No. 483, establishing a recall and
resentencing procedure for any persons serving a term of incarceration, whose sentences
included an invalid prior prison term enhancement. (See § 1172.75, subd. (c).) The
resentencing process begins with corrections officials notifying the court that an
incarcerated person is serving a term for a judgment that includes an invalid section
667.5, subdivision (b) enhancement. (See § 1172.75, subd. (b).) It is well-settled that
neither a defendant nor someone acting upon the defendant’s behalf can seek recall for
resentencing by filing a motion or petition. (People v. Cota (2023) 97 Cal.App.5th 318,
332 [“section 1172.75 does not authorize a defendant to seek resentencing on his or her
own motion or petition”].)
Section 1172.75 establishes a deadline under which the secretary of the CDCR and
county correctional administrators must identify persons in custody serving sentences that
include an enhancement under section 667.5. First, “[b]y March 1, 2022, for individuals
who have served their base term and any other enhancements and are currently serving a
sentence based on the [affected] enhancement.” And second, “[b]y July 1, 2022, for all
other individuals.” (§ 1172.75, subd. (b)(1),(2).) Resentencing for the “priority” group
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was statutorily required to occur by October 1, 2022, and “[b]y December 31, 2023, for
all other individuals.” (§ 1172.75, subd. (c)(1), (2).)
The Legislature made this change retroactive by adding section 1171.1 (Stats.
2021, ch. 728, § 3), which was later renumbered section 1172.75 without substantive
(b) are one-year enhancements. (People v. Carter, supra, 97 Cal.App.5th at p. 966.)
They cannot be five- and 10-year enhancements like the ones in defendant’s judgment.
At the plea and sentencing hearing, defendant admitted the truth of the other
enhancements, but not the one-year prison priors. The trial court did not ask defendant to
admit the truth of the prison prior enhancements.
In hearing the current petition, the trial court stated that the abstract of judgment is
“the most interesting collection of enhancements I have ever seen” and explained that the
judgment listed a code section number that did not exist and attributed other punishment
in several impermissible ways, including listing section 667.5, subdivision (b) with a
five- or 10-year enhancement. In denying defendant’s section 1172.75 petition, though,
the court said: “This is abundantly clear from this record. The defendant was sentenced
to absolutely no prison prior. Let me repeat that. The defendant was sentenced to
absolutely no prison prior. There is ambiguity in the language that was used. The judge
did strike a prison prior. It is clear that the judge intended to strike all of the prison
priors.” The court ordered the abstract of judgment “amended to reflect the original
pronouncement of judgment.” Defendant’s abstract of judgment now contains no
typographical error that lists section 667.5, subdivision (b).
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Under section 1385, subdivision (b)(1), a court that has the power to strike an
enhancement “may instead strike the additional punishment for that enhancement in the
furtherance of justice. . . .” This can be referred to as “imposing” the enhancement but
striking the punishment. (See People v. Hall (2024) 104 Cal.App.5th 1077, 1088 [“court
imposed but struck the punishment for the firearm enhancements”]; People v. Boukes
(2022) 83 Cal.App.5th 937, 939 [trial court “imposed, but struck punishment on the gang
enhancements”].)
The Rules of Court provide a legal standard for a court’s decision whether to strike
an enhancement entirely or strike only its punishment: “In determining whether to strike
the entire enhancement or only the punishment for the enhancement, the court may
consider the effect that striking the enhancement would have on the status of the crime as
a strike, the accurate reflection of the defendant's criminal conduct on his or her record,
the effect it may have on the award of custody credits, and any other relevant
consideration.” (Cal. Rules of Court, rule 4.428(b).)
At the sentencing here, the trial court initially said “[y]ou know what, I’m going to
strike the punishment” on the prison prior enhancements. But when it articulated the
sentence, it said that it was striking the enhancement, not the punishment: “And I’m
striking the one-year prior.” The latter is what the court did. The court did not have
defendant admit the prison priors once he responded that two were simply probation
violations. And the court did not include them in the judgment with struck punishment.
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Based on the foregoing reasons, we conclude that section 1172.75 does not apply
as defendant had no prison prior imposed at all. Thus, defendant is not entitled to
resentencing under subdivision (d) of the statute.
IV.
DISPOSITION
The trial court’s order finding defendant ineligible for resentencing under section
1172.75 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. A defendant is ineligible for resentencing under Penal Code section 1172.75 if the trial court did not impose any prior prison term enhancements under section 667.5, subdivision (b) in the original judgment.
Issues
Whether a defendant is entitled to resentencing under Penal Code section 1172.75 when prior prison term enhancements were never imposed in the original sentence.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Because the record indicates no prison prior enhancements were imposed at defendant’s sentencing, defendant is ineligible for resentencing under section 1172.75, subdivision (d).”
“The defendant was sentenced to absolutely no prison prior.”