California Court of Appeal Mar 27, 2025 No. E083357Unpublished
Filed 3/27/25 P. v. Polk 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083357
v. (Super. Ct. No. FWV012744-1)
KENNETH BERNARD POLK, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Dismissed with directions.
John L. Staley, 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 it did not have jurisdiction to recall the sentence and 1 resentence defendant and appellant Kenneth Bernard Polk pursuant to Penal Code
section 1172.75 because the sentencing enhancement imposed for his having suffered a
prior prison term (§ 667.5, subd. (b)) had been stricken in 2002 from the original 1998
sentence based on dual use of facts. The court also denied defendant’s section 1172.75
petition for resentencing under People v. Rhodius (2023) 97 Cal.App.5th 38, review
granted February 21, 2024, S283169 (Rhodius).2
On appeal, defendant contends he is entitled to a full resentencing hearing
pursuant to section 1172.75, even though his prison priors (§ 667.5, subd. (b)) were
stayed or stricken. He also claims the order must be reversed because the hearing was
conducted in his absence in violation of his federal and state constitutional right to be
present. Because the trial court lacked jurisdiction to hear defendant’s personally filed
section 1172.75 petition, we dismiss the appeal. However, as noted by defendant, the
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 Rhodius, supra, 97 Cal.App.5th 38; People v. Christianson (2023) 97 Cal.App.5th 300, review granted, Feb. 21, 2024, S283189 (Christianson); and People v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted Mar. 12, 2024, S283547.)
2
March 29, 2023, abstract of judgment must be corrected to reflect conviction for grand
theft on count 2.3
II.
PROCEDURAL BACKGROUND4
On March 13, 1998, a jury found defendant guilty of second degree murder
(§§ 187, subd. (a), 189, subd. (b); count 1) and grand theft (§ 489; count 2). The jury
found true allegations that in the commission of both offenses, defendant personally used
a firearm (§ 12022.5, subd. (a)) and a principal was armed with a firearm (§ 12022,
subd. (a)(1)). The trial court further found true the allegations that defendant had one
strike and had served one prior prison term. (§§ 667, subds.(b)-(i), 667.5, subd. (b).) In a
bifurcated proceeding, the trial court found true that defendant had suffered one prior
strike conviction (§ 667, subds. (b)-(i)) and two prior prison terms (§ 667.5, subd. (b)).
On February 22, 2002, following two remands for resentencing by this court,5 the
trial court sentenced defendant to prison for a determinate term of 11 years, followed by
3 The original abstract of judgment erroneously shows that defendant was convicted of robbery in count 2. The jury found defendant guilty in count 2 of grand theft as a lesser included offense of robbery. Abstracts of judgments dated December 22 and December 28, 2001, and March 6, 2002, show a conviction for grand theft on count 2. The abstract of judgment dated March 29, 2023 shows that count 2 was a conviction for robbery.
4 The underlying factual background is not relevant to the issues raised on appeal. We therefore dispense with a statement of facts.
5 In defendant’s original direct appeal, we remanded with direction that the trial court impose the firearm use enhancement attached to count 2 (grand theft). (People v. Polk (Nov. 28, 2001, E028623) [nonpub. opn.] (Polk I).) In defendant’s second appeal, [footnote continued on next page]
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an indeterminate term of 30 years to life, calculated as follows: 15 years to life, doubled
to 30 years to life due to the strike prior for count 1 (murder); a consecutive term of
10 years for the firearm use enhancement attached to count 1; a consecutive one year for
the principal armed enhancement attached to count 1; a concurrent term of four years for
count 2 (grand theft); a concurrent term of 10 years for the firearm use enhancement
attached to count 2; a stayed one year term for the principal armed enhancement attached
to count 2; and stayed one year terms for the two prior prison term enhancements.
On March 24, 2023, the trial court held an ex parte hearing. The minute order
states: “The Court has read and considered SB483-PC1171/PC1171.1 Resentencing
Stipulation form submitted by the clerk’s office. [¶] The Court finds Petitioner satisfies
the criteria in Penal Code 1171.1.” “Court strikes the two 1 year PC667.5(B) prior(s).
Sentence remains the same as sentence on PC667.5 priors was stayed.” “Defense Motion
for Resentencing pursuant to PC1171.1 is Granted.” “District Attorney Notified,”
“Probation Officer Notified,” and “Public Defender Notified.”
On December 1, 2023, defendant in propria persona filed a motion to recall one-
year prior pursuant to sections 1172.75 and 667.5, subdivision (b). Defendant claimed
that the California Department of Corrections and Rehabilitation (CDCR) had
“erroneously excluded [him] from possible resentencing under SB 483 by missing the
law[’]s deadline of July 1, 2022.” He requested resentencing and that any ameliorative
laws be applied to him. He attached a copy of the June 19, 1998, minute order from his
we remanded with direction that the trial court run the firearm enhancement term concurrently, since it had ran the term on count 2 concurrently. (Polk I, supra, E028623.)
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original sentencing, which showed one one-year prison prior that was imposed and one
one-year prison prior that was stayed.
On December 22, 2023, the trial court held a hearing on defendant’s motion, at
which he was represented by counsel but not present. The minute order noted
defendant’s presence was waived. The trial court said: “[T]he one-year priors were
stricken pursuant to a stipulation at a previous request back on March 24th of 2023,” but
“[i]t does appear that there may be some other issues in regards to resentencing based on
the enhancements.” The trial court thus scheduled a hearing “for further petition of
further resentencing.”
On February 21, 2024, the trial court held a hearing on defendant’s motion/petition
for resentencing under section 1172.75. The trial court indicated that defendant’s
“presence was waived” and that defendant was represented by counsel. The court
thereafter explained: “For the record, I did have an opportunity to review the court file,
the original presentence investigation report, and abstract of judgment. He did receive a
total of 41 years for Count 1, which was the 187 and 12022(a)(1), which would have been
15, doubled for 30 years, plus the allegation of ten years, and then one for the
12022(a)(1) for a total of 41 years to life. [¶] It does appear from looking back that,
initially, the one year might have been imposed under 667.5(b), but on remittitur, it was
later stricken in 2002 from the original 1998 sentencing based on the fact it was a dual
use of facts. So it was then later stricken. [¶] We’re now here in 2024, and I believe that
since it was previously stricken in the past in 2002, the Court does not have jurisdiction
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under 1172.75 for resentencing, and based on the Rhodius decision, R-h-o-d-i-u-s. [¶]
So his request for petition for resentencing is denied based on the fact that the one-year
prior was stayed and/or stricken on a previous hearing back in 2002. And the Rhodius
decision . . . .” Defense counsel urged the trial court to follow opinions disagreeing with
Rhodius and requested a full resentencing hearing, but the court declined to do so.
Defendant timely appealed.
III.
DISCUSSION
Defendant argues he is entitled to a full resentencing hearing pursuant to
section 1172.75 regardless of whether the prior prison term enhancement was imposed,
stayed, dismissed, or stricken. He also asserts that the court has jurisdiction over this
appeal and that the order should be reversed because the hearing was conducted in his
absence without a valid waiver in violation of his constitutional right to be present.
The People respond that the appeal should be dismissed because defendant appeals
from an order on his personal motion for resentencing under section 1172.75, a motion
over which the trial court had no jurisdiction. Alternatively, the People assert defendant
is not entitled to a full resentencing hearing because section 1172.75 does not apply to an
imposed and stayed section 667.5, subdivision (b) prior prison enhancement, and urge
this court to follow the reasoning of our previous decision in Rhodius and affirm the
order denying resentencing under section 1172.75. The People also assert that defendant
had no right to be present at the hearing where the trial court made the threshold
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determination of his eligibility for resentencing under section 1172.75, but agree the
abstract of judgment should be corrected.
Before January 2020, section 667.5, subdivision (b), permitted enhancements for
any prior prison term for a felony. (Stats. 2018, ch. 423, § 65.) Effective January 1,
2020, the Legislature amended subdivision (b) to limit prior prison term enhancements to
sexually violent offenses. (Stats. 2019, ch. 590, § 1.) The Legislature made this change
retroactive by adding section 1171.1 (Stats. 2021, ch. 728, § 3), which was later
renumbered to section 1172.75 without substantive change. (Stats. 2022, ch. 58, § 12.)
Under section 1172.75, “[a]ny sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5,” except for enhancements
for certain sexually violent offenses, “is legally invalid.” (§ 1172.75, subd. (a).)
Section 1172.75 also provides that, if a prior prison term enhancement becomes invalid
under the section, a trial court “shall recall the sentence and resentence the defendant”
(§ 1172.75, subd. (c)), and, in doing so, “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).)
Section 1172.75, subdivision (a), declares any sentence enhancement “imposed
prior to January 1, 2020” pursuant to section 667.5(b), except for sexually violent
offenses, to be “legally invalid.” Subdivision (b) of section 1172.75 directs that the
CDCR “shall identify those persons in their custody currently serving a term for a
judgment that includes an enhancement described in subdivision (a) and shall provide the
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name of each person, along with [other information] to the sentencing court that imposed
the enhancement.” (§ 1172.75, subd. (a).) After such notification, “the court shall review
the judgment and verify that the current judgment includes a sentencing enhancement
described in subdivision (a). 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.” (§ 1172.75, subd. (c).)
The record does not show CDCR identified defendant as currently serving an
imprisonment term that included a section 667.5, subdivision (b) enhancement.
Defendant instead independently filed a petition for recall and resentencing pursuant to
section 1172.75. The trial court denied the petition, finding defendant did not fall within
section 1172.75 because he was not currently serving a prison term that included a
section 667.5, subdivision (b) enhancement as the court had stricken that enhancement.
Given section 1172.75’s express requirement that CDCR initiate the contemplated
recall and resentencing process set forth by the statute (§ 1172.75, subd. (b)),
“section 1172.75 simply does not contemplate resentencing relief initiated by any
individual defendant’s petition or motion.” (People v. Burgess (2022) 86 Cal.App.5th
375, 384 (Burgess); see People v. Newell (2023) 93 Cal.App.5th 265, 268 (Newell).) The
record lacks evidence that CDCR had initiated the recall process. Although the trial court
had struck defendant’s prior prison terms in March 2023, there is no evidence that CDCR
had initiated the recall and resentencing proceedings. Moreover, even if CDCR had
initiated the process in March 2023, defendant did not appeal from that order within
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60 days and any issues relating to that order are untimely. We accordingly lack
jurisdiction to address defendant’s appeal from a petition he filed without involvement by
CDCR. (People v. Newell, at p. 267; People v. Burgess, at p. 382.)
Additionally, the record shows that defendant did have a resentencing hearing
under section 1171.1, which was renumbered to section 1172.75 and is the same statute
as section 1171.1. The record demonstrates that defendant entered into a resentencing
stipulation to strike his prison prior enhancements in March 2023. Resentencing by
stipulation is permitted under section 1172.75, subdivision (e). Per that stipulation, on
March 23, 2023, the trial court found that defendant satisfied the statutory criteria and
resentenced him as agreed, which was to strike defendant’s prison priors only. By the
time defendant filed his current petition for resentencing, the statute had been
renumbered to section 1172.75 and it was filed after defendant had already been
resentenced by stipulation under the statute.
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IV.
DISPOSITION
The appeal is dismissed. The trial court is ordered to amend the abstract of
judgment dated March 29, 2023, to reflect that count 2 was a conviction for grand theft
and to forward a copy to the CDCR.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON Acting P. J. We concur:
FIELDS J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal because the trial court lacked jurisdiction to hear the defendant's personally filed petition for resentencing under Penal Code section 1172.75, as the statute does not contemplate relief initiated by a defendant's motion.
Issues
Whether the trial court had jurisdiction to hear a defendant-initiated petition for resentencing under Penal Code section 1172.75.
Whether the defendant is entitled to a full resentencing hearing when prior prison term enhancements were previously stayed or stricken.
Whether the defendant's constitutional right to be present was violated during the resentencing eligibility hearing.
Disposition. dismissed
Quotations verified verbatim against the opinion
“Because the trial court lacked jurisdiction to hear defendant’s personally filed section 1172.75 petition, we dismiss the appeal.”
“section 1172.75 simply does not contemplate resentencing relief initiated by any individual defendant’s petition or motion.”