California Court of Appeal Apr 30, 2025 No. E083115Unpublished
Filed 4/30/25 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083115
v. (Super. Ct. No. RIF132174)
ANDREW GARCIA, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
David M. McKinney, 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, Arlene A. Sevidal, Nora S. Weyl,
Elizabeth M. Renner, and Jon S. Tangonan, Deputy Attorneys General, for Plaintiff and
Respondent.
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I.
INTRODUCTION
The trial court found defendant and appellant Andrew Garcia, Jr. ineligible for
resentencing pursuant to Penal Code1 section 1172.75 because the sentencing
to a term of 20 years, four months in state prison. For prior prison term enhancement, the
court imposed and stayed the one-year prison term.
At some point, the California Department of Corrections and Rehabilitation
(CDCR) identified defendant as a person currently serving a prison term that included a
prison prior enhancement imposed pursuant to section 667.5, subdivision (b). In
December 2023, the trial court conducted hearings on a number of section 1172.75
resentencing requests that had come to the court via a list the court had received from
CDCR referencing persons in its custody whose sentences included at least one prison
prior enhancement. The court had been placing multiple cases onto its calendar for
possible resentencing.
After conducting a hearing in the case of People v. Chlad, Riverside Superior
Court Case No. BAF002073, in December 2023, on December 21, 2023, the trial court
issued a minute order denying defendant’s resentencing request, finding defendant
ineligible for resentencing. The court’s minute order indicated counsel for defendant and
the People were present, and that defendant was not present. The court “Incorporate[d]
by Reference” its reasoning from the Chlad matter. In denying defendant’s request for
resentencing, the court vacated the previously imposed sentence on the prison prior,
reimposed a one-year sentence for the same prison prior allegation, and then ordered the
sentence stricken. Defendant timely appealed.
3
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.3 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).)
3 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 People v. Rhodius (2023) 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169 (Rhodius); 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 (Saldana).)
4
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).) Here,
defendant’s judgment includes one stayed prison prior.
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
Christianson, Saldana, and Mayberry reasoned that Rhodius’s refusal to apply
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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,
subdivision (d)(1).
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 pp. 674-675 [“Imposed-
but-stayed prior prison term 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, at p. 312; Saldana, at p. 1277;
Mayberry, at p. 674.)
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,
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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-
675.)
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 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.”].)
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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).)
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“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.) “‘[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,
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
960, 967 (Carter).)
Here, defendant was not present at the hearing and there is no indication in the
record that a valid waiver of defendant’s absence from the hearing was obtained. “[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
10
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
his valid waiver.
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
circumstances.’”].)
IV.
DISPOSITION
The trial court’s December 21, 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
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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.
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[People v. Garcia, E083115]
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, on which the
majority rely in part, is at least in some degree flawed; Christianson erroneously asserts
that a court could impose punishment on a stayed prior prison term enhancement 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 stayed enhancement
here could never subsequently be imposed because it has been both invalidated and
stricken. (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 on a section 667.5, subdivision (b) enhancement, time on the
enhancement could now never be imposed, and the striking of the enhancement did not
result in a lesser sentence than the one originally imposed.
To interpret the law to permit relief 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. (See, e.g., People
v. Tang (2025) 109 Cal.App.5th 1003, 1006 [Defendant not entitled to resentencing where
the trial court stayed the enhancement, but the appellate court modified the judgment on
direct appeal to strike the prior prison term.].) Moreover, since defendant was per se
1
ineligible for a full resentencing hearing, he was not entitled to be present at the hearing.
Therefore, I would affirm the order denying defendant a full resentencing hearing.
McKINSTER Acting P. J.
2
AI Brief
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. Furthermore, the court held that the defendant has a constitutional and statutory 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 be present at a resentencing hearing conducted pursuant to Penal Code section 1172.75?
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“this case must be remanded to conduct a full resentencing hearing with defendant present or with his valid waiver.”