California Court of Appeal Mar 17, 2025 No. E082901Unpublished
Filed 3/17/25 P. v. Tranum 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082901
v. (Super.Ct.No. INF1700752)
LARRY DEAN TRANUM, 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, Christopher P. Beesley and Namita
Patel, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Larry Dean Tranum appeals from the trial court’s order
finding him ineligible for recall of his prison sentence and resentencing under Penal Code
section 1172.75.1 The court found defendant ineligible because his original sentencing
court struck all punishment on the three prison priors (§ 667.5, subd. (b)) defendant
motion to strike one of the prior strikes, but “only for the purposes of the [T]hree
[S]trikes sentencing law,” leaving the admission intact “for all other sentencing purposes,
including the [Penal Code section] 667[ subdivision ](a) prior, which is going to be
imposed.” The court sentenced defendant to an aggregate term of 18 years in prison. In
doing so, the court imposed but immediately struck one-year enhancement terms for each
of defendant’s three prison priors.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
In December 2023, the trial court reviewed defendant’s eligibility for recall and
resentencing under section 1172.75. The court noted on the record that it considered the
following recently decided cases: People v. Saldana (2023) 97 Cal.App.5th 1270
(Saldana), rev. granted Mar. 12, 2024, S283547; People v. Christianson (2023) 97
Cal.App.5th 300 (Christianson), rev. granted Feb. 21, 2024, S283189, People v. Rhodius
(2023) 97 Cal.App.5th 38 (Rhodius), rev. granted Feb. 21, 2024, S283169; and People v.
Renteria (2023) 96 Cal.App.5th 1276 (Renteria).
In finding defendant fell outside the statute’s resentencing provisions, the court
observed, in reviewing defendant’s court records, including the original sentencing
proceedings: “[It] was always [the case] that—the punishment [on his three prior prison
enhancements] was always struck. I do not believe that it was stayed in the manner that
is contemplated by the diversity of opinions in Rhodius, Christianson, Renteria, and
Saldana. So for that reason, he’s not entitled, as a matter of law, to relief . . . [under
section] 1172.75.”
DISCUSSION
Defendant argues that section 1172.75 applies to defendants whose punishment
was struck on a prior prison term enhancement. We disagree.
At the time of defendant’s conviction and sentencing, “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 for at least five years.” (People v. Jennings (2019) 42
Cal.App.5th 664, 681.) Subsequently, section 1172.75 now provides, with an exception
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that is not applicable here: “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).2)
Section 1172.75 further provides, as pertinent here, for recall and resentencing if
the superior court in which the defendant was sentenced “determines that the
[defendant’s] current judgment includes an enhancement described in subdivision (a).”
(§ 1172.75, subd. (c); see id., subd. (b) [specifying sentencing court as recall and
resentencing venue].) Additionally, the statute specifies that for defendants eligible for
recall and resentencing, their resentencing “shall result in,” “as a result of the elimination
of the repealed enhancement,” “a lesser sentence than the one originally imposed . . .
unless the court finds by clear and convincing evidence that imposing a lesser sentence
would endanger public safety.” (§ 1172.75, subd. (d)(1), italics added.3)
The issue presented in this case—whether section 1172.75 applies to prior prison
enhancement terms that were imposed but for which the punishment was struck—is
closely related, but not identical to, an issue currently dividing our appellate courts,
namely, whether section 1172.75 applies to prior prison term enhancements that were
2 The exception specifies that only prior prison enhancements “for a prior conviction for a sexually violent offense” remain valid. (§ 1172.75, subd. (a).)
3 This subdivision, without our italics, quotation marks, and ellipses inserted for clarity, provides in full: “Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.” (§ 1172.75, subd. (d)(1).)
4
imposed but stayed. (Compare Rhodius, supra, 97 Cal.App.5th 38 [Legislature did not
intend stayed prison prior enhancements to trigger recall and resentencing] with
Christianson (2023) 97 Cal.App.5th 300 [finding a stay no obstacle to resentencing];
accord, People v. Mayberry (2024) 102 Cal.App.5th 665 (Mayberry) [following
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 note that 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
4
violent 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 each of his three prior prison enhancements but
5
struck the punishment. Accordingly, the enhancements were part of the sentence and
were included in the abstract of judgment.
The CDCR presumably identified defendant as eligible for relief because the
enhancements were 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 . . . .”].)4
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
increased the length of a sentence is for the enhancement to have been imposed and
4 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.)
6
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.5 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.
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,
5 This assumes the judgment was final as of January 1, 2020, as SB 136 on its own is not retroactive to final judgments.
7
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.
8
AI Brief
AI-generated · verify before citing
Holding. Penal Code section 1172.75 does not apply to defendants whose prior prison term enhancements were imposed but had their punishment stricken by the sentencing court.
Issues
Does Penal Code section 1172.75 apply to prior prison term enhancements where the punishment was stricken rather than stayed or executed?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“we conclude section 1172.75 does not apply where punishment was stricken on each of defendant’s prior prison term enhancements, and he therefore is not entitled to resentencing under subdivision (d) of the statute.”
“An enhancement for which the punishment was struck, as here, is materially distinguishable from an enhancement that was imposed but stayed.”