California Court of Appeal May 14, 2025 No. E082985Unpublished
Filed 5/14/25 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082985
v. (Super.Ct.No. RIF1400906)
ANTHONY JACOB LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Jared G. Coleman, 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, Christopher P. Beesley and
Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
The trial court found defendant and appellant Anthony Jacob Lopez ineligible for
resentencing pursuant to Penal Code1 section 1172.75 because the sentencing
enhancement imposed for his having suffered a prior prison term (§ 667.5, subd. (b)) was
imposed and stricken during his initial sentencing proceedings.
On appeal, defendant contends trial courts must conduct full resentencing hearings
pursuant to section 1172.75 for every defendant whose prison sentence includes a prior
prison term enhancement under section 667.5, subdivision (b), regardless of whether the
enhancement was originally executed, stayed or stricken. We disagree. If the
punishment on a now-invalid prison prior was struck when the defendant was originally
sentenced, then the defendant is ineligible for resentencing under section 1172.75,
subdivision (d). Therefore, we affirm the trial court’s order denying the defendant’s
request for resentencing under section 1172.75.2
1 All future statutory references are to the Penal Code.
2 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 (Rhodius), review granted Feb. 21, 2024, S283169; People v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted Mar. 12, 2024, S283547; People v. Christianson (2023) 97 Cal.App.5th 300 (Christianson), review granted Feb. 21, 2024, S283189.)
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II.
PROCEDURAL BACKGROUND3
In 2016, defendant pleaded guilty to voluntary manslaughter (§ 192, subd. (a)) and
assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) for the benefit
of a criminal street gang (§ 186.22, subd. (b)(1)(A)). Defendant also admitted to having
suffered a prior strike conviction (§§ 667, subds. (c) & (e)(1)), 1170.12, subds. (c)(1)), a
prior serious felony conviction (§ 667, subd. (a)(1)), and a prior prison term (§ 667.5,
subd. (b)). In accordance with the plea agreement, the trial court sentenced defendant to
25 years in state prison, dismissed the remaining charges, and struck the one-year
punishment for the prison prior. The abstracts of judgment noted that punishment for the
prison prior had been struck.
As of January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019,
ch. 590) amended section 667.5, subdivision (b), to eliminate sentence enhancements for
prior prison terms unless the prior terms were for sexually violent offenses. (Stats. 2019,
ch. 590, § 1; People v. Coddington (2023) 96 Ca1.App.5th 562, 567.) Two years later,
Christianson, Saldana, and Mayberry reasoned that Rhodius’s concern about applying
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section 1172.75 to stayed enhancements was unfounded, because striking a stayed
enhancement does result in a “lesser” sentence within the meaning of section 1172.75,
subdivision (d)(1). As Christianson explained, 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, at p. 312.) Striking a stayed enhancement reduces
the defendant’s sentence, because it eliminates the risk that the enhancement will be
executed in the future. (Ibid.; see Saldana, at p. 1277; Mayberry, 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 prior prison term
enhancement, because striking the stayed enhancement is sufficient to satisfy the “lesser
sentence” mandate of section 1172.75, subdivision (d)(1). (Christianson, at p. 312;
Saldana, at p. 1278; Mayberry, at pp. 674-675.)
Defendant argues that the trial court was required to resentence him pursuant to
subdivision (d) of section 1172.75, because the plain language of section 1172.75 does
not limit its application to cases wherein the prison priors were imposed and executed but
also applies to stayed or stricken prison priors as they remain a part of the judgment.
Defendant also asserts that the legislative history of Senate Bill No. 483 indicates the
Legislature intended section 1172.75 to apply broadly. The People counter that because
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the punishments on the prison priors were struck, the reasoning of Rhodius applies. We
agree with the People.
As Christianson pointed out, “[w]hen a punishment is stayed, as opposed to
stricken, 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 Ca1.App.5th at p. 312.) But when the sentencing court struck the punishment
for defendant’s prison priors, the court eliminated any possibility that those prison prior
enhancements could be executed, even if an alternatively imposed term was later
invalidated. (See Ibid.; see also People v. Brewer (2014) 225 Ca1.App.4th 98, 104, 106.)
Resentencing defendant pursuant to subdivision (d) of section 1172.75 under such
circumstances would therefore have forced the court to arbitrarily lower his sentence to
comply with the “lesser sentence” requirement (§ 1172.75, subd. (d)), because the
striking of a prison prior enhancement for which the punishment had already been struck
would not by itself result in a lesser sentence. (See Rhodius, supra, 97 Ca1.App.5th at
p. 44, review granted.) We agree with Rhodius that the Legislature did not intend such a
result.
In the present case, the record clearly shows punishment for the prior prison term
enhancement was stricken, not stayed. At the original sentencing hearing, the trial court
struck defendant’s punishment for the prison prior.
In People v. Espino (2024) 104 Cal.App.5th 188 (Espino), review granted
October 23, 2024, S286987, the Sixth District Court of Appeal held that the term
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“ ‘impose[d]’ ” as used in section 1172.75 also included prior prison term enhancements
for which punishment had been stricken. Espino held that defendants with stricken
punishment for prior prison term enhancements are entitled to full resentencing,
reasoning that the Legislature intended the phrase “ ‘[a]ny sentence enhancement’ ” in
section 1172.75 to be applied broadly, whether the punishment was executed, stayed or
stricken. (Espino, at pp. 196-197.) The majority saw no reason to distinguish between
prison prior enhancements that were imposed but stayed and those that were imposed but
the punishment stricken. (Id. at p. 193 [“section 1172.75 should be interpreted to apply
whenever a prison prior was imposed, whether punishment was executed, stayed, or
struck”].) The dissent, however, found “the concept of a sentence enhancement being
‘imposed’ when its punishment was stricken” incomprehensible, and the dissent further
observed that “[f]or enhancements, the California Supreme Court has identified two
potential meanings of ‘impose’: ‘[T]he word “impose” [can apply] to enhancements that
are “imposed and then executed” as well as those that are “imposed and then stayed.”’
[Citation.]” (Id. at p. 203 (dis. opn. of Lie, J.).) The dissent also echoes Rhodius’s
concern that the Legislature presumably did not intend to force resentencing courts to
arbitrarily lower sentences, noting that “eliminating an enhancement for which the court
had already stricken the punishment” does not, by itself, result in a lesser sentence.
(Espino, at p. 203, fn. 2 (dis. opn. of Lie, J.).) The majority opinion does not address that
issue. On balance, we find the Espino dissent more persuasive than the majority opinion.
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We disagree with the majority’s holding in Espino. Because punishment for the
prison prior enhancement in this case was stricken, it was not imposed and executed, the
section 1172.75 requirement for a resentencing hearing does not apply. In fact, since
punishment for the enhancement was previously stricken, 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).)
Based on the foregoing reasons, we conclude that section 1172.75 does not apply
to defendant’s prior prison term enhancement that was imposed and stricken and that he
therefore is not entitled to resentencing under subdivision (d) of the statute.
IV.
DISPOSITION
The trial court’s order finding defendant ineligible for resentencing under
section 1172.75 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. I concur:
McKINSTER Acting P. J.
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[People v. Lopez, E082985]
RAPHAEL, J., dissenting.
I respectfully dissent, as I would follow People v. Espino (2024) 104
Cal.App.5th 188, review granted Oct. 23, 2024, S286987 and hold that a prison prior
enhancement imposed in a judgment qualifies a defendant for resentencing under
Penal Code section 1172.75 even if the trial court struck the one-year punishment on
the enhancement.1
The text of section 1172.75 encompasses such an enhancement.
Section 1172.75, subdivision (a), invalidates any prison prior enhancement “imposed”
before 2020, excluding only those for sexually violent offenses. It contains no other
exclusion. Even the majority refers to defendant Anthony Jacob Lopez’s
enhancement as “imposed.” (Maj. opn., ante, at p. 10 [“imposed but the punishment
stricken”].) This is consistent with normal usage. (See, e.g., People v. Boukes (2022)
83 Cal.App.5th 937, 939 [trial court “imposed, but struck punishment on the gang
enhancements”], review granted Dec. 14, 2022, S277103.) Under the terms of the
statute, then, the enhancement is invalid, and Lopez qualifies for a resentencing
without the enhancement, as section 1172.75 provides in its subdivisions (c) and (d).
It is reasonable for the majority to consider whether there is some reason not to
apply the statute’s invalidation provision in this straightforward manner. But in doing
so, the majority fails to recognize that the enhancement was imposed in a manner
1 Undesignated statutory citations are to the Penal Code.
1
authorized by our state’s sentencing statutes. Instead, the majority opinion appears to
endorse a view that imposing an enhancement while striking its punishment is
“incomprehensible.” (Maj. opn., ante, at p. 10.) Were that true, it could support the
majority’s decision to depart from the statutory text. After all, an incomprehensible
sentencing enhancement might be invalid, such that it could be removed from a
judgment even without section 1172.75. But our sentencing laws in fact authorized
imposition of the enhancement. Because, as I will explain, the enhancement’s
imposition was authorized for penological purposes, it makes sense that the
enhancement was “imposed” like any other and invalidated by section 1172.75.
At sentencing, the Penal Code permits a court to “strike or dismiss” an
enhancement entirely. (§ 1385, subds. (a), (b).) If a court does that, the enhancement
is not “imposed.” It would not appear in the defendant’s abstract of judgment and
would not qualify the defendant for recall-and-resentencing. The Secretary of the
Department of Corrections would not even identify the defendant as a person covered
by section 1172.75. (See § 1172.75, subds. (a), (b).)
Rather than strike the enhancement, though, the Penal Code allows a court
to “instead strike the additional punishment for that enhancement in the
furtherance of justice.” (§ 1385, subd. (b)(1).) As mentioned above, this is
typically described as imposing the enhancement but striking the punishment.
(E.g., People v. Hall (2024) 104 Cal.App.5th 1077, 1088.) A trial court that does
this chooses to impose the enhancement even though it could strike it. State law
2
guides judges in making that choice. California Rules of Court, rule 4.428,
entitled “[f]actors affecting imposition of enhancements,” provides factors for the
court’s decision to impose the enhancement but strike the punishment: “In
determining whether to strike the entire enhancement or only the punishment for
the enhancement, the court may consider the effect that striking the enhancement
would have on the status of the crime as a strike, the accurate reflection of the
defendant's criminal conduct on his or her record, the effect it may have on the
award of custody credits, and any other relevant consideration.” (Cal. Rules of
Court, rule 4.428(b); see In re Pacheco (2007) 155 Cal.App.4th 1439, 1444-1445
[finding consequences from an enhancement because even though the punishment
was struck the “fact of the enhancement . . . remained” and listing various
consequences that could result from such an enhancement].)
So when a trial court chooses not to strike an enhancement, but to impose an
enhancement and strike its punishment, it is making a choice authorized in the
statutory scheme. That is, to achieve penological purposes, the law authorizes trial
courts to impose enhancements but strike the punishment. Because this is a formal
part of California sentencing, it makes sense that these enhancements are invalidated
by the language in section 1172.75, subdivision (a). It does not make sense for us to
exclude them. To be sure, most defendants face little, if any, effect from an imposed
enhancement where the punishment was struck. But where the imposition of an
enhancement is a trial court decision that formally serves sentencing purposes, even if
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slight, it makes sense to infer that the Legislature intended to include that
enhancement within a law that retroactively eliminates the enhancement from
judgments. Once one recognizes that Lopez’s enhancement is invalidated by
section 1172.75, subdivision (a), the statutory relief he qualifies for is a resentencing
under subdivisions (c) and (d), not the striking of his enhancement.
RAPHAEL
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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 and subsequently stricken, as such enhancements were not 'imposed and executed' and their removal would not result in a lesser sentence.
Issues
Whether Penal Code section 1172.75 requires a full resentencing hearing for defendants whose prior prison term enhancements were imposed but stricken.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“If the punishment on a now-invalid prison prior was struck when the defendant was originally sentenced, then the defendant is ineligible for resentencing under section 1172.75, subdivision (d).”
“Because punishment for the prison prior enhancement in this case was stricken, it was not imposed and executed, the section 1172.75 requirement for a resentencing hearing does not apply.”