California Court of Appeal Mar 13, 2025 No. E083031Unpublished
Filed 3/13/25 P. v. Aguirre 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083031
v. (Super.Ct.No. RIF080926)
EDWARD STANLEY AGUIRRE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Cindi B. Mishkin, 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, Daniel Rogers and Alana Cohen Butler,
Deputy Attorneys General, for Plaintiff and Respondent.
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PROCEDURAL HISTORY
Defendant Edward Stanley Aguirre plead guilty to burglary (Pen. Code, § 459)1
and admitted four strike priors (§§ 667, subds. (c), (e)(2), 1170.12, subd. (c)(2)), two
prior serious felony conviction allegations (§ 667, subd. (a)), and one prior prison term
allegation (§ 667.5, subd. (b)). The court sentenced defendant to a determinate 10-year
term consecutive to an indeterminate term of 25 years to life. Additionally, the court
imposed but stayed a one-year term on the prior prison term allegation.
The trial court denied resentencing for defendant under section 1172.75 because it
considered defendant ineligible. The court did however strike the punishment for the
prior prison term enhancement under section 667.5, subdivision (b).2 Defendant appeals
the denial order.
DISCUSSION3
Section 1172.75, subdivision (a) states, “Any sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, . . . is
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Presumably, the court struck the punishment for the prior prison term enhancement because that same prior conviction had also been used to impose a section 667, subdivision (a) enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1153 [sections 667 and 667.5 enhancements cannot both apply to the same prior offense]; People v. Perez (2011) 195 Cal.App.4th 801, 805 [where a sentencing court improperly imposes five-year prior serious felony enhancement and a one-year prison term enhancement for the same conviction, the court should strike the punishment for the prior prison term enhancement].)
3 We omit a statement of facts because the facts are not relevant to a discussion of the issue on appeal.
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legally invalid.” Subdivision (b) of section 1172.75 directs the California Department of
Corrections and Rehabilitation (CDCR) and county correctional administrators to identify
“persons in their custody currently serving a term for a judgment that includes an
enhancement” under section 667.5, subdivision (b).
Upon receipt of the list, the sentencing court must verify that “the current
judgment includes a sentencing enhancement described in subdivision (a).” (§ 1172.75,
subd. (c).) If so, the sentencing court must recall the sentence and resentence the
defendant. (Ibid.)
At the resentencing hearing, a sentence less than the original sentence must be
imposed due to the elimination of the enhancement, unless the court finds a lesser
sentence would endanger public safety. The court must also apply any other changes in
law that reduce sentences or provide for judicial discretion. (§ 1172.75, subd. (d)(1)-(2).)
The appellate courts are divided on whether these provisions apply to prior prison
term enhancements for which the punishment has been stayed or stricken, and the
California Supreme Court has granted review in most of these cases. In People v.
Cal.App.5th at p. 314.) The court noted that the resentencing procedures set forth in the
statutory scheme promoted this legislative goal insofar as they “require that the trial court
conduct a full resentencing for those defendants impacted by the now invalid
enhancement in light of all associated sentencing reform.” (Ibid.) Given this legislative
objective, the Christianson court inferred that the Legislature presumably “intended to
provide broad relief to all defendants impacted by the now invalid section 667.5,
subdivision (b) enhancements.” (Ibid.)
I respectfully disagree with one portion of Christianson. Acknowledging that
section 1172.75, subdivision (d)(1), requires a trial court to impose a lesser sentence than
originally imposed, Christianson rejected the notion that removing a stayed term does not
result in a lesser sentence. (Christianson, supra, 97 Cal.App.5th at p. 312.) Rather, the
court concluded that even a stayed term has potential consequences to a sentence since
the trial court “retains the ability to lift the stay and impose the term under certain
circumstance[s], such as if an alternately imposed term is invalidated.” (Ibid.; accord,
Saldana, supra, 97 Cal.App.5th at p. 1278 [stayed enhancement is part of sentence and
remains available if its execution becomes necessary].) I disagree with this conclusion
since a prison prior that was imposed before 2020, and was not for a sexually violent
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offense, is now legally invalid under section 1172.75, subdivision (a); thus, a court has no
ability to lift a stay and impose such a prison prior in the future.
In any event, in the instant case, there is no dispute defendant was serving time on
a judgment which includes a section 667.5, subdivision (b) enhancement that was not for
a sexually violent offense. Section 1172.75 expressly provides that if a “current
judgment includes an enhancement described in subdivision (a), the court shall recall the
sentence and resentence the defendant.” (§ 1172.75, subd. (c).) Applying Christianson
here, defendant is entitled to a full resentencing under section 1172.75. (§ 1172.75,
subds. (a), (c); see Christianson, supra, 97 Cal.App.5th at pp. 314-315.) “By its plain
terms, section 1172.75 requires a full resentencing, not merely that the trial court strike
the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402
(Monroe); see People v. Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is
stricken on review, on remand for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing discretion in light of the changed
circumstances.’ ”].) At resentencing, the court 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)) and shall
consider any “postconviction factors” militating against continued incarceration
(§ 1172.75, subd. (d)(3)).
At the original sentencing in the instant case, the sentencing court sentenced
defendant to one-year punishment on the prior prison enhancement but stayed the
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punishment. Accordingly, the enhancement was part of the sentence and was included in
the abstract of judgment.1
The CDCR presumably identified defendant as eligible for relief because the
enhancement was included in the abstract of judgment. (Christianson, supra,
97 Cal.App.5th at p. 312 [“[A]ll that is required for the CDCR to identify an inmate
under section 1172.75, subdivision (b) is for the enhancement to be included in the
abstract of judgment . . . .”].)2
The People ask us to follow Rhodius, supra, 97 Cal.App.5th 38, which held that
the express language in section 1172.75, subdivision (d)(1), requiring the resentencing to
“ ‘result in a lesser sentence than the one originally imposed as a result [of] the
elimination of the repealed enhancement,’ ” combined with the legislative history behind
the enactment of Senate Bill Nos. 136 and 483, require the conclusion that section
1172.75 does not invalidate prior prison term enhancements that were imposed but
stayed. (Rhodius, at pp. 42-49.) Rhodius reasoned as follows: “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
1 I note that, at the resentencing hearing, the court ordered the punishment on the prison prior enhancement stricken.
2 Notably, since the filing of Christianson, the Sixth Appellate District has published an opinion agreeing with Christianson and further concluding that section 1172.75 “applies whenever a prison prior is included in a judgment, whether the prior is executed, stayed, or punishment is struck.” (People v. Espino (2024) 104 Cal.App.5th 188, 194 (Espino), review granted Oct. 23, 2024, S286987.)
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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.” (Id. at p. 44.)
Although Rhodius was thoughtfully decided, I respectfully disagree with it.
Rather, I agree with Christianson’s conclusion that section 1172.75 applies to cases in
which the inmate’s abstract of judgment includes a section 667.5, subdivision (b)
enhancement “regardless of whether it is imposed or stayed.” (Christianson, supra,
97 Cal.App.5th at pp. 305, 312.)
Under Rhodius, the word “imposed” in section 1172.75, subdivision (a), means
“imposed and executed.” Thus, the “imposed and stayed” prior convictions in that case
were not “imposed” within the meaning of section 1172.75, subdivision (a). If that
interpretation is correct, then the prison prior convictions in that case would not be
legally invalid, and the trial court in Rhodius should not have struck them.3 Yet, the trial
court in Rhodius did strike them, strongly inferring their invalidity, and the Rhodius court
affirmed the trial court’s action. In my view, section 1172.75 either applies or does not
apply. The authority to strike the prior convictions comes only where section 1172.75
applies.
Although the length of sentence does not change when a trial court vacates a now
invalid prior conviction that had previously been stayed or where the punishment had
been stricken, defendant’s consequences of conviction are lessened. If defendant’s prison
3 This assumes the judgment was final as of January 1, 2020, as SB 136 on its own is not retroactive to final judgments.
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prior were to be vacated and stricken its entirety, the abstract of judgment would no
longer show the prison prior conviction if a court assesses the appropriate disposition in
any future case or on a violation of parole on the current case.
Finally, a careful review of the statute reveals that the statute contains language
favorable to an interpretation consistent with that taken by Rhodius, and it also contains
language favorable to an interpretation consistent with that taken in Christianson. I agree
with the court in Espino, supra, 104 Cal. App. 5th at p. 198, that under the rule of lenity,
where the Legislature’s intent cannot be determined, courts must prefer the interpretation
that is most favorable to defendants.
In sum, I conclude that the trial court erred in finding defendant ineligible for
relief. The CDCR properly identified him as a person in custody “currently serving a
term for a judgment that includes an enhancement described in [section 1172.75,]
subdivision (a).” (§ 1172.75, subd. (b).) He was therefore entitled to a recall of his
sentence and a full resentencing under the terms of section 1172.75, which would include
the application of “any other changes in law that reduce sentences or provide for judicial
discretion” (§ 1172.75, subd. (d)(2)) and consideration of “postconviction factors”
militating against continued incarceration (§ 1172.75, subd. (d)(3)). I would reverse the
denial order and remand to the trial court for a full resentencing hearing pursuant to
section 1172.75, subdivisions (c) and (d).
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1172.75 does not apply to prior prison term enhancements that were previously stricken, as the statute requires the enhancement to have been imposed and executed to trigger a full resentencing.
Issues
Whether Penal Code section 1172.75 applies to prior prison term enhancements for which the punishment was previously stricken.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Because punishment for the enhancement in this case was stricken, it was not imposed and executed, and the section 1172.75 requirement for a resentencing hearing does not apply.”
“In fact, since punishment for the enhancement was previously stricken, there was nothing more the trial court could do to eliminate punishment for the enhancement and impose a lesser sentence.”