California Court of Appeal May 1, 2025 No. E083063Unpublished
Filed 5/1/25 P. v. Probus 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083063
v. (Super.Ct.No. SWF003257)
JAMES RAMIREZ PROBUS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Heather L. Beugen, 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, Robin Urbanski, Brendon Marshall, and
Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
1
PROCEDURAL HISTORY
A jury convicted defendant James Ramirez Probus of first degree murder in
count 1 (Pen. Code, § 187, subd. (a))1 and found true the special circumstance that the
murder was committed during an attempted robbery (§ 190.2, subd. (a)(17)(A)).2 A prior
prison term allegation under section 667.5, subdivision (b) was found true. The court
sentenced defendant to life without the possibility of parole and stayed the one-year
imposed on the prison prior.
At the hearing held pursuant to section 1172.75, the court determined defendant
was not eligible for relief.
On appeal, defendant argues the superior court erred in denying him relief. We
affirm the denial order.
DISCUSSION3
Section 1172.75, subdivision (a) states, “Any sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, … is
legally invalid.” The Department of Corrections and Rehabilitation (CDCR) and county
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Because the record filed by the superior court clerk was inadequate, the parties requested the court take judicial notice of the clerk’s transcript filed in the prior appeal, People v. Probus (Dec. 22, 2022, E072780) [nonpub. opn.] (Probus I). We granted the requests by order filed December 10, 2024. On our own motion we took judicial notice of pages 1 and 34 of the reporter’s transcript filed in Probus I, supra, E072780 by order filed December 23, 2024.
3 We omit a fact statement because it is not necessary to discuss the facts of the underlying case to resolve the issue on appeal.
2
correctional administrators must identify “persons in their custody currently serving a
term for a judgment that includes an enhancement” under section 667.5, subdivision (b).
(§ 1172.75, subd. (b).)
Upon receipt of the list, the sentencing court must verify that “the current
judgment includes a sentencing enhancement described in subdivision (a).” (§ 1172.75,
subd. (c).) If so, the sentencing court must recall the sentence and resentence the
defendant. (Ibid.)
At the resentencing hearing, a sentence less than the original sentence must be
imposed due to the elimination of the enhancement, unless the court finds a lesser
sentence would endanger public safety. The court must also apply any other changes in
law that reduce sentences or provide for judicial discretion. (§ 1172.75, subd. (d)(1)-(2).)
On appeal of the superior court’s determination that a defendant is not entitled to full
resentencing under section 1172.75, we conduct de novo review. (People v. Christianson
People v. Saldana (2023) 97 Cal.App.5th 1270, 1272–1273, review granted Mar. 12,
4
2024, S283547 [Third District]; People v. Renteria (2023) 96 Cal.App.5th 1276, 1281–
1283 [Sixth District].)
Christianson held that because stayed sentence enhancements could potentially
increase the sentence if the case were reversed on appeal or if there was a recall of
sentence, removal of the stayed enhancement could provide sentencing relief by
“eliminating that potential.” (Christianson, supra, 97 Cal.App.5th at p. 312, review
granted.) However, the fact that the section 667.5 enhancement could potentially be
imposed under certain limited circumstances does not add to the sentence imposed in this
appellate case. Section 1172.75 does not address any collateral consequences of a prior
prison term enhancement.
Punishment in this case was not imposed and executed, and the section 1172.75
requirement for a resentencing hearing does not apply. In fact, since the punishment was
previously stayed, there was nothing more the trial court could do to eliminate
punishment for the enhancement and impose a lesser sentence. (§ 1172.75, subd. (d)(1).)
We apply Rhodius, supra, 97 Cal.App.5th 38, review granted, and affirm the trial court’s
denial of a resentencing hearing.
5
DISPOSITION
The superior court’s order denying section 1172.75 resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J. CODRINGTON J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1172.75 does not apply to prior prison term enhancements that were imposed but stayed, as the statute requires the enhancement to have been imposed and executed to qualify for resentencing relief.
Issues
Does Penal Code section 1172.75 apply to prior prison term enhancements that were imposed but stayed?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We therefore held that section 1172.75 did not apply to prior prison term enhancements that had been stayed.”
“Punishment in this case was not imposed and executed, and the section 1172.75 requirement for a resentencing hearing does not apply.”