People v. Stone CA1/3

Filed 3/5/25 P. v. Stone CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A169646 v. (Contra Costa County TRACY ARTHUR STONE, Super. Ct. Nos. 9211442 Defendant and Appellant. & 9223520)

Tracy Arthur Stone appeals from an order denying him resentencing under Penal Code section 1172.75. (Undesignated statutory references are to this code.) We affirm. BACKGROUND In 1993, after a bench trial, Stone was convicted of multiple counts of kidnapping and sexual assault against minors arising out of events occurring in 1992, along with several enhancements — none of which were prior prison term enhancements under former section 667.5, subdivision (b). The trial court sentenced him to 109 years, four months in prison. One month before this sentencing, Stone also pled no contest to first degree burglary based on events occurring in 1990, along with enhancements for a prior prison conviction (§ 667.5, subd. (b)) and for a prior serious felony conviction (former § 667, subd. (a)). In a separate abstract of judgment, the court sentenced Stone to nine years in prison — the middle term of four years for the burglary, and five years for the prior serious felony enhancement. The court 1

struck the prior prison enhancement and stated the sentence in that case was to “run concurrent with any sentence [Stone] is now serving or is subject to serve in the Department of Corrections.” Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended section 667.5, subdivision (b), to eliminate sentencing enhancements for prior prison terms unless the prior terms were for sexually violent offenses. (Stats. 2019, ch. 590, § 1; People v. Burgess (2022) 86 Cal.App.5th 375, 380.) This amendment applies retroactively. (Burgess, at p. 380.) Section 1172.75 states, “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, . . . is legally invalid.” (§ 1172.75, subd. (a); Stats. 2021, ch. 728, § 3) The statute includes a mechanism for resentencing defendants serving terms that include this now-invalid enhancement. (§ 1172.75, subds. (b)–(d); Burgess, at p. 380.) Specifically, the Secretary of the Department of Corrections and Rehabilitation (Secretary) must identify persons in their custody “currently serving a term for a judgment that includes an enhancement” as described in section 1172.75, subdivision (a), and provide the name, birth date, and relevant case number to the sentencing court that imposed the enhancement. (Id., subd. (b).) The court must first verify the judgment includes the enhancement and, if so, recall and resentence the defendant. (Id., subd. (c).) At resentencing, the court must impose a lesser sentence than the original sentence unless it would endanger public safety. (Id., subds. (d)(1)–(2).) Around June 2022, the Secretary sent a notification that Stone was serving a now-invalid sentence for a prior prison term.1 The trial court