People v. Proby CA4/3

Filed 4/18/25 P. v. Proby CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G063764

v. (Super. Ct. No. 95NF2269)

SHANNA GARCIA PROBY, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded. Jennifer A. Gambale, 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, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Shanna Garcia Proby appeals a postjudgment order 1 denying his petition for resentencing under Penal Code section 1172.75. Under that section, resentencing is generally required when the defendant is serving a sentence for a judgment that includes a prior prison term enhancement under former section 667.5, subdivision (b) (section 667.5(b)). Although Proby’s judgment includes such an enhancement, the trial court determined he was ineligible for resentencing because its punishment was stricken at the time of sentencing. Proby 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. FACTS In 1996, Proby pleaded guilty to second degree robbery and admitted to serving a prior prison term for purposes of former section 667.5(b). The trial court struck the punishment for the prison prior and sentenced Proby to a total of 30 years to life in prison. 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.) It later afforded retroactive relief to those serving a sentence that includes a now-invalid prison prior enhancement. (Stats. 2022, ch. 58, § 12.) After the California Department of Corrections and Rehabilitation identified Proby as a person serving a term for a judgment that includes a now-invalid enhancement, he petitioned the trial court to recall his sentence and resentence him pursuant