People v. Wilkens CA4/3

Filed 4/15/25 P. v. Wilkens CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063758

v. (Super. Ct. No. 97NF3400)

MICHAEL DUANE WILKENS, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded. Rex Adam Williams, 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 Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Michael Duane Wilkens appeals an order denying his 1 petition for resentencing under Penal Code section 1172.75. Pursuant to that section, resentencing generally is required when the defendant is serving a sentence for a judgment that includes a prior prison term enhancement under section 667.5, subdivision (b) (section 667.5(b)). Although Wilkens’s judgment includes two such enhancements, the trial court determined he was ineligible for resentencing because their punishment was stricken at the time of sentencing. Wilkens contends that ruling was erroneous, and we agree. Following the Sixth District’s recent opinion in People v. Espino (2024) 104 Cal.App.5th 188 (Espino), review granted October 23, 2024, S286987, and pending review of that issue by the California Supreme Court, we reverse the court’s order and remand for resentencing. PROCEDURAL BACKGROUND In 1999, Wilkens was convicted of robbery and burglary and found to have suffered multiple prior convictions. He was also found to have served two prior prison terms within the meaning of section 667.5(b), which were based on his commission of burglary in two earlier cases. The trial court sentenced him to an aggregate prison term of 35 years to life in prison. In so doing, the court imposed a one-year enhancement for each of the prior prison terms, but it then struck that punishment for purposes of sentencing. Effective January 1, 2020, the Legislature limited the applicability of section 667.5(b) to prior prison terms that were served for sexually violent offenses. (Stats. 2019, ch. 590, § 1.) In light of that development, Wilkens petitioned the trial court to recall his sentence and resentence him pursuant to section 1172.75. But because Wilkens’s