California Court of Appeal May 5, 2025 No. E083117Unpublished
Filed 5/5/25 P. v. Moss 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083117
v. (Super.Ct.No. BAF1800564)
NICHOLAS RICHIE WAYNE MOSS OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Shay Dinata-Hanson, 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, Elizabeth M. Renner and A. Natasha
Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Nicholas Richie Wayne Moss appeals from the trial
court’s order finding him ineligible for recall of his sentence and resentencing under
Penal Code section 1172.75.1 Three years earlier, as directed by this court on remand
following defendant’s direct appeal of his underlying conviction (People v. Moss
At a hearing on remittitur on May 18, 2021, the trial court struck the two prison
priors and furthermore struck the two serious felony priors, also pursuant to this court’s
direction in Moss, supra, E072236. The trial court’s minute order following the hearing
states: “Court orders Prior(s) 01 02 03 04 Stricken.” As to the prison prior enhancements
in particular, the court ordered, “So we’re going to strike those.” At the courtroom
clerk’s request at the close of the hearing, the court clarified as to both “the 667(a)” and
“the 667.5(b)” priors that “we’re striking all of them. There’s four.” The trial court
ordered that an “amended abstract be issued” to reflect the changes, but the abstract of
judgment filed two days later, on May 20, 2021, continued to indicate the two prison
priors (and the serious felony priors) remained stayed.
3
At a hearing in December 2023, the trial court found defendant was “not entitled
to relief” under section 1172.75 for recall of his sentence and resentencing. At the outset
of the hearing, defendant’s public defender submitted that defendant “appears not to be
eligible for . . . resentencing” because his prison prior enhancements had been stricken,
though that was not reflected on defendant’s abstract of judgment. The trial court agreed
that defendant was ineligible and granted defendant’s motion to correct the abstract of
judgment to reflect the court’s order on May 18, 2021, striking the prison priors. The
court ordered “[t]he abstract of judgment . . . to be corrected to show nothing in the
enhancements box.” The abstract was amended accordingly in January 2024, with all
references to the prison priors deleted.
DISCUSSION
Defendant argues he is entitled to resentencing relief under section 1172.75 even
though the prison prior enhancements on which the trial court entered a stay at his
original sentencing hearing were ordered stricken by this court. Defendant concedes “it
is true that, on May 18, 202[]1, the [trial] court intended to strike the priors,” but
defendant relies on the fact that, at least as reflected on his abstract of judgment, “that did
not happen.” Defendant does not dispute that the court struck the priors at the May 18,
2021, hearing, nor could he, since the court’s oral pronouncement controls what may be
reflected in a written memorandum of the court’s order. As the Supreme Court has
explained, “An abstract of judgment is not the judgment of conviction; it does not control
if different from the trial court’s oral judgment and may not add to or modify the
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judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181,
185.)
At bottom, defendant’s contention that he is eligible for resentencing rests on the
error in the abstract of judgment. More specifically, he relies on an excerpted quotation
from People v. Christianson (2023) 97 Cal.App.5th 300 (Christianson), review granted
February 21, 2024, S283189. Quoting Christianson, defendant contends that at a hearing
regarding section 1172.75 resentencing eligibility, “the trial court’s role [i]s to ‘verify’ if
[the defendant] was ‘serving time on an abstract of judgment that includes a
section 667.5, subdivision (b) enhancement that was imposed and stayed.”
(Christianson, at p. 311.) We are not persuaded by defendant’s invocation of
Christianson’s interpretation of section 1172.75.
Nor it turns out is the court that decided Christianson, which has recently
determined that in the circumstances here—where a prison prior enhancement that was
originally imposed and stayed is stricken following the defendant’s direct appeal—the
defendant is ineligible for resentencing under section 1172.75. (See People v. Tang
(2025) 109 Cal.App.5th 1003, 105 (Tang) [a stricken enhancement is not “imposed”
within the meaning of § 1172.75, as is necessary for relief under the statute.)
Our review is de novo. (Tang, supra, 109 Cal.App.5th at p. 107.)
At the time of defendant’s conviction and sentencing, “section 667.5,
subdivision (b) required trial courts to impose a one-year sentence enhancement for each
true finding on an allegation the defendant had served a separate prior prison term and
had not remained free of custody for at least five years.” (People v. Jennings (2019)
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42 Cal.App.5th 664, 681.) Subsequently, section 1172.75 now provides, with an
exception that is not applicable here: “Any sentence enhancement that was imposed prior
to January 1, 2020, pursuant to subdivision (b) of Section 667.5 . . . is legally invalid.”
(§ 1172.75, subd. (a), italics added.2)
Critical to our analysis here, section 1172.75 further provides in express language
a conditional trigger for recall and resentencing under the statute, namely: only “[i]f” the
superior court in which the defendant was sentenced “determines that the [defendant’s]
current judgment includes an enhancement described in subdivision (a).” (§ 1172.75,
subd. (c); see id., subd. (b) [specifying sentencing court as recall and resentencing
venue].) Stated again in relevant part, subdivision (c) of section 1172.75 provides: “If
the court determines that the current judgment includes an enhancement described in
subdivision (a), the court shall recall the sentence and resentence the defendant.” (Italics
added.) In reviewing statutory language, absent ambiguity, “[t]he statute’s plain meaning
controls.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.)
Here it is clear under section 1172.75, subdivision (c)’s conditional language that
defendant is not eligible for recall and resentencing under the statute. As noted, this court
ordered defendant’s two one-year prison prior enhancements stricken (Moss, supra,
E072236), and the trial court did so on remand. With those enhancements removed,
nothing in defendant’s “current judgment” qualified him for recall of his sentence and
2 The exception specifies that only prior prison enhancements “for a prior conviction for a sexually violent offense” remain valid. (§ 1172.75, subd. (a).)
6
resentencing. (§ 1172.75, subd. (c).) In other words, no section 667.5, subdivision (b),
enhancement or enhancements remained “imposed” under section 1172.75.
Tang reaches the same conclusion that a defendant is ineligible for resentencing in
similar circumstances. The Tang court cautioned, “The proper interpretation of
section 1172.75 is the subject of conflicting published appellate opinions and is under
review by our Supreme Court.” (Tang, supra, 109 Cal.App.5th at p. 107.) We set out
those decisions in the margin,3 but as Tang also observed, “none of those cases involved
an enhancement that was stricken.” (Ibid.)
In Tang, the appellate court there previously on direct review of the defendant’s
conviction and sentence applied Supreme Court precedent to modify the judgment to
strike the defendant’s prison prior enhancement that the trial court had imposed but
stayed at the defendant’s original sentencing. (Tang, supra, 109 Cal.App.5th at p. 1008,
[applying People v. Jones (1993) 5 Cal.4th 1142, 1153].) Tang noted that, in the decades
between the defendant’s direct appeal and the trial court’s subsequent consideration of
whether the defendant was eligible for relief under section 1172.75, “[t]he abstract of
judgment was apparently not amended to reflect our modification of the judgment.”
(Tang, at p. 1009.) As a result, the California Department of Corrections and
3 In addition to Christianson, cases pending high court review regarding recall and resentencing eligibility under section 1172.75 include: People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169; People v. Saldana (2023) 97 Cal.App.5th 1270, review granted March 12, 2024, S283547; People v. Mayberry (2024) 102 Cal.App.5th 665, review granted August 14, 2024, S285853; and People v. Espino (2024) 104 Cal.App.5th 188, review granted October 23, 2024, S286987.
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Rehabilitation, acting under section 1172.75, subdivision (b), as appears to have been the
case here, “identified an imposed enhancement.” (Tang, at p. 1009.) The trial court at
the underlying section 1172.75 hearing in Tang, however, determined as part of “the
verification stage” required by section 1172.75, subdivision (c), that “the judgment did
not include a qualifying enhancement because it had been stricken on appeal, despite
what the preappeal abstract of judgment showed.” (Tang, at p. 1009.) Tang upheld the
trial court’s conclusion that the defendant was not eligible for resentencing. The
appellate court reasoned that, once the defendant’s previously stayed prison prior
enhancement had been stricken upon the defendant’s direct appeal, “[i]t would be
anomalous to conclude that an enhancement was both imposed by and stricken from the
judgment,” within the meaning of “imposed” in section 1172.75. (Tang, at p. 1008.)
Tang expressly rejected, as do we, the identical argument defendant makes here in
relying on an erroneous abstract of judgment. Contrary to defendant’s assertion: “The
statute and the legislative history refer to whether the judgment, not the abstract of
judgment, includes a prison prior enhancement. (See § 1172.75, subds. (b) & (c); Sen.
Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill 483 (2021–2022 Reg.
Sess.) as amended Sept. 1, 2021, p. 3.)” (Tang, supra, 109 Cal.App.5th at p. 1009.) No
more is required for us to conclude that the trial court here correctly found defendant
ineligible for relief under section 1172.75.
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DISPOSITION
The trial court’s order finding defendant ineligible for recall of his sentence and
resentencing under section 1172.75 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
MENETREZ J.
9
AI Brief
AI-generated · verify before citing
Holding. A defendant is ineligible for resentencing under Penal Code section 1172.75 if their prison prior enhancements were previously stricken by the court, as the judgment no longer includes an 'imposed' enhancement required for statutory relief.
Issues
Whether a defendant is eligible for resentencing under Penal Code section 1172.75 when their prison prior enhancements were previously stricken by the court despite an erroneous abstract of judgment.
Whether an enhancement that has been stricken from a judgment qualifies as 'imposed' under Penal Code section 1172.75.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“a stricken enhancement is not “imposed” within the meaning of § 1172.75, as is necessary for relief under the statute.”
“The statute and the legislative history refer to whether the judgment, not the abstract of judgment, includes a prison prior enhancement.”