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People v. Fernandez CA4/2 (2025) · DecisionDepot
/ California Court of Appeal People v. Fernandez CA4/2 Unpublished Filed 4/1/25 P. v. Fernandez CA4/2 See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083319
v. (Super. Ct. No. SWF1807828)
JOSE FELIPE FERNANDEZ, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
James R. Bostwick, Jr., 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.
1
I.
INTRODUCTION The trial court found defendant and appellant Jose Felipe Fernandez ineligible for
resentencing pursuant to Penal Code1 section 1172.75 because the sentencing
enhancement imposed for his having suffered one prior prison term (§ 667.5, subd. (b))
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was imposed and stayed during his initial sentencing proceedings.
On appeal, defendant contends he is entitled to a full resentencing hearing
pursuant to section 1172.75, even though his prison prior (§ 667.5, subd. (b)) was
imposed and stayed. We agree that defendant is entitled to sentencing relief under
section 1172.75 for his prior prison term enhancement which was imposed and stayed.
We therefore reverse the order and remand for the trial court to recall defendant’s
sentence, vacate his prison prior enhancement, and resentence him under section 1172.75,
PROCEDURAL BACKGROUND2 In June 2019, defendant pled guilty to possession of a weapon, to wit, a slingshot,
while incarcerated (§ 4502, subd. (a)). In addition, defendant admitted that he had
suffered a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and a
prior prison term (§ 667.5, subd. (b)). After the trial court made an error in its initial
1 All future statutory references are to the Penal Code.
2 The underlying factual background is not relevant to the issues raised on appeal. We therefore dispense with a statement of facts.
imposition of sentence, the court ultimately sentenced defendant to a term of six years in
prison (three years for the offense, doubled to six years due to the prior strike), which
would run concurrently with another criminal matter. The court stayed the punishment
on the prison prior enhancement.
The California Department of Corrections and Rehabilitation (CDCR) later
presumably placed defendant on a resentencing list as being eligible for relief under
section 1172.75, and on August 28, 2023, defendant’s case was placed on the court’s
calendar for a recall and resentencing hearing pursuant to section 1172.75.
On December 21, 2023, the trial court held a hearing pursuant to section 1172.7,
subdivision (a), and 1172.75, subdivision (a). Defendant was not present but represented
by counsel. No court reporter was present either. The court’s minute order of the hearing
states the court had read People v. Rhodius (2023) 97 Cal.App.5th 38, review granted
February 21, 2024, S283169 (Rhodius), People v. Renteria (2023) 96 Cal.App.5th 1276
(Renteria), People v. Christianson (2023) 97 Cal.App.5th 300, review granted,
February 21, 2024, S283189 (Christianson), and People v. Saldana (2023) 97
Cal.App.5th 1270 (Saldana), review granted March 12, 2024, S283547, and found
defendant was not eligible for resentencing under section 1172.75, subdivision (d), and
denied defendant’s motion for resentencing. After denying relief, the court ordered the
stayed prior stricken from the judgment and ordered the clerk to issue an amended
abstract of judgment.3 Defendant timely appealed.
3 The prior prison term no longer appears on the amended abstract of judgment.
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
and stayed or imposed and executed.4 The People respond 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.
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).)
4 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, review granted Feb. 21, 2024, S283169; Saldana, supra, 97 Cal.App.5th 1270, review granted Mar. 12, 2024, S283547; Christianson, supra, 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189.)
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).)
In Rhodius, supra, 97 Cal.App.5th 38, this court held that the section 1172.75
resentencing provision does not apply when the trial court imposes and stays a prison
prior enhancement. Defendant urges this court to reject Rhodius, and follow
Christianson and Saldana, which concluded the converse. He argues that subsequent
decisions by other appellate courts hold, to the contrary, that section 1172.75, as amended
by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590) and Senate Bill
No. 483 (Reg. Sess. 2021-2022) (Stats. 2021, ch. 728), broadly applies to enhancements
imposed and stayed, such as in the instant case. The other appellate courts focus
primarily on the meaning of the term “imposed,” within the meaning of section 1172.75,
subdivision (a). (See Renteria, supra, 96 Cal.App.5th at p. 1282 [the word “‘impose’”
applies to enhancements that are “‘“imposed and then executed,”’” as well as those that
are “‘“imposed and then stayed”’”]; Christianson, supra, 97 Cal.App.5th at p. 305;
Saldana, supra, 97 Cal.App.5th at p. 1276; People v. Mayberry (2024) 102 Cal.App.5th
By granting review of Rhodius, supra, 97 Cal.App.5th 38, the Supreme Court has
agreed to resolve the “imposition” issue. In Rhodius, our court construed the term
“imposed,” within the meaning of section 1172.75, subdivision (a), as being limited to a
sentence being “imposed and executed.” We so limited the meaning of “imposed” in
order to make sense of the requirement in section 1172.75, subdivision (d)(1), that
resentencing must result in “a lesser sentence than the one originally imposed as a result
of the elimination of the repealed enhancement.” (Rhodius, supra, at pp. 42-45.) We
reasoned that “[t]he only way for the repealed enhancement to have increased the length
of a sentence is for the enhancement to have been imposed and executed.” (Rhodius,
supra, at p. 44.) Therefore, if section 1172.75 applied to stayed prison prior
enhancements, then a resentencing court faced with such an enhancement would be
forced to “arbitrarily lower” the defendant’s sentence to comply with the “lesser
sentence” requirement. (Rhodius, supra, at p. 44.) To avoid that outcome, we held in
Rhodius that section 1172.75 must be construed to apply only to prison prior
enhancements that were imposed and executed, and not to stayed prison prior
enhancements. (Rhodius, supra, at p. 44.)
All other appellate decisions that have considered this issue were decided after
Rhodius, with the exception of Renteria, supra, 96 Cal.App.5th 1276. So far, all of the
published decisions, other than Rhodius, have concluded that section 1172.75 applies
regardless of whether the imposed prison prior enhancement was executed or stayed.
(Renteria, supra, 96 Cal.App.5th 1276; Christianson, supra, 97 Cal.App.5th 300;
Saldana, supra, 97 Cal.App.5th 1270; Mayberry, supra, 102 Cal.App.5th 665.)
Christianson, Saldana, and Mayberry reasoned that Rhodius’s refusal to apply
section 1172.75 to stayed prison prior enhancements was unfounded, because striking a
stayed enhancement results in a “lesser” sentence within the meaning of section 1172.75,
The court in Christianson explained that a stayed enhancement carries “the
potential for an increased sentence,” because “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.” (Christianson, supra, 97 Cal.App.5th at p. 312.) Striking a stayed
enhancement reduces the defendant’s sentence because it eliminates the risk the
sentencing court will execute the enhancement in the future. (Ibid.; see Saldana, supra,
97 Cal.App.5th at p. 1277; Mayberry, supra, 102 Cal.App.5th at p. 674 [“Imposed-but-
stayed prison prior enhancements carry the possibility of execution,” and striking them
“eliminates their impact”].) Resentencing courts thus would not be required to arbitrarily
lower a sentence that included a stayed prison prior enhancement, because striking the
enhancement is sufficient to satisfy the “lesser sentence” mandate of section 1172.75,
subdivision (d)(1). (Christianson, supra, at p. 312; Saldana, supra, at p. 1277; Mayberry,
The term for a stayed enhancement does not become permanent until “the
defendant finishes serving the part of the sentence that has not been stayed.” (Cal. Rules
of Court, rule 4.447(a)(2).) Furthermore, a direct appeal is not the only circumstance in
which an alternately imposed term can be invalidated. As occurred with section 1172.75,
the Legislature sometimes enacts retroactive changes to sentencing laws. (See Saldana,
supra, 97 Cal.App.5th at p. 1278, [“a stayed term or enhancement . . . is part of the
sentence and remains available if its execution becomes necessary and proper for any
legally sanctioned reason”].) Because defendant is still serving the sentence imposed for
his conviction, his prison prior enhancement still “carr[ies] the possibility of execution.”
(Mayberry, supra, 102 Cal.App.5th at p. 674.)
Pending resolution and guidance by our Supreme Court of the split among the
appellate courts on this issue, we conclude that the other appellate courts’ compelling
reasoning raised after Rhodius was decided, persuasively supports applying
section 1172.75 to all imposed prison prior enhancements, regardless of whether the
enhancements were stayed or executed. We also agree that striking a stayed enhancement
results in a lesser sentence. (Christianson, supra, 97 Cal.App.5th at pp. 312, 315;
Saldana, supra, 97 Cal.App.5th at p. 1277; Mayberry, supra, 102 Cal.App.5th at pp. 674-
We recognize that this decision is inconsistent with this court’s previous decision
in Rhodius. Nevertheless, for the reasons stated above, we conclude contrary to Rhodius
that section 1172.75 applies to defendant’s stayed prison prior enhancement. As a result,
he is entitled to reversal of the trial court order denying sentencing relief and remand for
the trial court to recall his sentence, to vacate his prison prior enhancement, and
resentence him under section 1172.75, subdivision (d). (See People v. Monroe (2022) 85
Cal.App.5th 393, 402 [“[S]ection 1172.75 requires a full resentencing, not merely that the
trial court strike the newly ‘invalid’ enhancements.”].)
We further note that a criminal defendant’s right to be personally present at trial
and by extension all critical stages of the criminal prosecution, including sentencing and
resentencing, is guaranteed in the federal Constitution by the confrontation clause of the
Sixth Amendment and the due process clause of the Fourteenth Amendment. (People v.
Velasco (2023) 97 Cal.App.5th 663, 673 (Velasco).) It is also required by section 15 of
article I of the California Constitution and by sections 977 and 1043. (Velasco, at p. 673.)
Section 977, subdivision (b)(1), requires a defendant “be physically present at the
arraignment, at the time of plea, during the preliminary hearing, during those portions of
the trial when evidence is taken before the trier of fact, and at the time of the imposition
of sentence. The accused shall be physically or remotely present at all other proceedings
unless they waive their right to be physically or remotely present, with leave of court and
with approval by defendant’s counsel.” “The waiver of a defendant’s right to be
physically or remotely present may be in writing and filed with the court or, with the
court’s consent, may be entered personally by the defendant or by the defendant’s counsel
of record.” (§ 977, subd. (b)(2).)
“A waiver of the defendant’s physical or remote presence may be entered by
counsel, after counsel has stated on the record that the defendant has been advised of the
right to be physically or remotely present for the hearing at issue, has waived that right,
and agrees that notice to the attorney that the defendant’s physical or remote presence in
court at a future date and time is required is notice to the defendant of that requirement.”
(§ 977, subd. (b)(2)(B).)
“As a matter of both federal and state constitutional law, . . . a defendant may
validly waive his or her right to be present during a critical stage of the trial, provided the
waiver is knowing, intelligent, and voluntary.” (People v. Cunningham (2015) 61 Cal.4th
609, 633 (Cunningham).) “‘[T]he court can rely upon the representations of defense
counsel that the accused was knowingly absent from the proceedings.’” (People v.
Fedalizo (2016) 246 Cal.App.4th 98, 110.) In this case, defendant’s counsel did not
indicate that defendant waived his presence or authorized the waiver, and there was no
evidence on the record that otherwise showed that the waiver, through counsel, was
“knowing.” (Cunningham, supra, at p. 633.)
“When errors involving a defendant’s federal constitutional rights are implicated,
the standard set forth in Chapman v. California (1967) 386 U.S. 18 . . . applies and the
error is prejudicial and requires reversal unless we can conclude beyond a reasonable
doubt that it did not affect the outcome of the proceeding.” (Velasco, supra, 97
Cal.App.5th at p. 674.) We review de novo whether trial courts have complied with
section 1172.75’s resentencing requirements. (People v. Carter (2023) 97 Cal.App.5th
Here, the trial court struck defendant’s prior prison enhancement but did not
conduct a full resentencing hearing or obtain a valid waiver of defendant’s absence from
the hearing. “[A] defendant eligible for removal of a prison prior under section 1172.75
must be provided an opportunity for full resentencing to argue for further relief under any
other ameliorative changes in law that reduce sentences, regardless of whether their
sentence resulted from a plea agreement.” (Carter, supra, 97 Cal.App.5th at p. 972.)
Furthermore, had defendant been present, “he may have ‘offered mitigating factors
that arose after his original sentencing; he may have expressed remorse; [or] he may have
made a plea for leniency.’” (Velasco, supra, 97 Cal.App.5th at p. 674.) As such, this case
must be remanded to conduct a full resentencing hearing with defendant present or with
We reverse and remand for a full resentencing hearing pursuant to section 1172.75
with defendant present or with his valid waiver. Upon resentencing, the trial court should
calculate defendant’s custody credits, prepare an amended abstract of judgment, and
forward a copy of the amended abstract of judgment to the CDCR. (People v. Buckhalter
(2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must
credit him with all actual days he spent in custody (whether in jail or prison) up to that
time, including his time in custody after the original sentencing]; People v. Buycks (2018)
5 Cal.5th 857, 893 [“[O]n 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
DISPOSITION The trial court’s December 2023 order finding defendant ineligible for sentencing
relief is reversed. The matter is remanded to the trial court for a full resentencing hearing
under section 1172.75, subdivision (d), in defendant’s presence or with defendant’s
waiver. Following resentencing, the trial court should prepare an amended abstract of
judgment and forward a copy to the CDCR.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. I concur:
RAPHAEL J. [People v Fernandez, E083319]
McKINSTER, Acting P. J., dissenting:
I continue to adhere to our decision in People v. Rhodius (2023) 97 Cal.App.5th 38,
review granted February 21, 2024, S283169. Christianson’s reasoning is, at least in some
degree flawed; Christianson erroneously asserts that a court could impose punishment on a
prior prison term enhancement, like the one here, at some point in the future. (People v.
Christianson (2023) 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189.)
Contrary to Christianson’s implication, punishment on the enhancement here could
never subsequently be imposed because the law has invalidated such enhancements unless
they are for qualifying sexually violent offenses, which is inapplicable here. (People v.
Mayberry (2024) 102 Cal.App.5th 665, 676, review granted Aug. 14, 2024,
S285853.) Thus, defendant was not entitled to a full resentencing hearing because he was
not serving time for a Penal Code section 667.5, subdivision (b) enhancement, time on the
enhancement could now never be imposed, and striking the enhancement would not result in
a lesser sentence than the one originally imposed.
To interpret the law to permit a full resentencing hearing to a person who was
“lucky” enough to only have punishment on his enhancement stayed but not to someone
who was “unfortunate” enough to have his enhancement completely stricken strains
credulity. Therefore, I would affirm the order denying defendant a full resentencing hearing.
AI-generated · verify before citing Holding. The court held that Penal Code section 1172.75 applies to prior prison term enhancements that were imposed and stayed, entitling the defendant to a full resentencing hearing. The court further held that the defendant has a constitutional right to be present at such resentencing proceedings.
Issues
Does Penal Code section 1172.75 apply to prior prison term enhancements that were imposed and stayed? Is a defendant entitled to a full resentencing hearing under section 1172.75 when a stayed enhancement is stricken? Does the absence of a defendant at a resentencing hearing without a valid waiver constitute reversible error? Disposition. Reversed and remanded
“We agree that defendant is entitled to sentencing relief under section 1172.75 for his prior prison term enhancement which was imposed and stayed.” “we conclude contrary to Rhodius that section 1172.75 applies to defendant’s stayed prison prior enhancement.” “We reverse and remand for a full resentencing hearing pursuant to section 1172.75 with defendant present or with his valid waiver.”