California Court of Appeal May 14, 2025 No. E082846Unpublished
Filed 5/14/25 P. v. Lamb 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082846
v. (Super.Ct.No. RIF1700595)
ANDREW CHARLES LAMB, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Richard Schwartzberg, 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, Vincent P. LaPietra and Daniel
Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
The trial court found defendant and appellant Andrew Charles Lamb 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 We affirm.
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.)
2
II.
PROCEDURAL BACKGROUND3
In July 2017, defendant pleaded guilty to residential burglary (§ 459) and assault
by means likely to produce great bodily injury (§ 245, subd. (a)(4)). Defendant also
admitted to having suffered a prior strike conviction (§§ 667, subds. (d), (e)(2)(A),
1170.12, subds. (b), (c)(2)(A)), a prior serious felony conviction (§ 667, subd. (a)(1)), and
a prior prison term (§ 667.5, subd. (b)). In return, defendant was promised a stipulated
term of 15 years in state prison, dismissal of the remaining charges, and that punishment
for the prison prior would be stricken. In accordance with the plea agreement, the trial
court sentenced defendant to 15 years in state prison, dismissed the remaining charges,
and struck the one-year punishment for the prison prior.4
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,
(formerly § 1171.1) to provide a resentencing procedure that extends the elimination of
prior prison term enhancements (other than for sexually violent offenses) to all persons
3 The underlying factual background is not relevant to the issues raised on appeal. We therefore dispense with a statement of facts.
4 We note that the court’s minute order of the July 11, 2017, sentencing hearing and the July 12, 2017, abstract of judgment incorrectly show that punishment for the prior prison term was stayed.
3
currently incarcerated in jail or prison. (Stats. 2021, ch. 728, § 3.) The resentencing
procedure, set forth in section 1172.75, subdivision (d), requires the trial court to impose
“a lesser sentence than the one originally imposed” unless the court finds by clear and
convincing evidence that doing so would endanger public safety. (§ 1172.75,
subd. (d)(1), (2).)
After being notified by the California Department of Corrections and
Rehabilitation (CDCR) that defendant’s sentence included section 667.5, subdivision (b)
enhancement, on November 8, 2023, the trial court purportedly recalled defendant’s
sentence pursuant to newly enacted section 1172.75.
On December 21, 2023, with defendant present via video conference, the court
conducted a section 1172.75 hearing. The court denied defendant’s request for a full
resentencing hearing, finding defendant to be ineligible on the ground that the
punishment for the prison prior had been struck at his original sentencing. In so doing,
the trial court incorporated the reasoning of this court in Rhodius, supra, 97 Cal.App.5th
38. The court ordered an amended abstract of judgment reflecting the section 667.5,
subdivision (b) prison prior enhancement was struck. Defendant timely appealed.
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III.
DISCUSSION
Defendant argues that the trial court erred by failing to conduct a full resentencing
hearing under subdivision (d) of section 1172.75 regardless of whether the enhancement
was initially executed, stayed or stricken, and thus a remand is required for the court to
conduct a full resentencing. The People argue that because the punishment for the prison
prior was struck, defendant is not entitled to resentencing under section 1172.75. We
agree with the People.
“Prior to January 1, 2020, 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. Burgess (2022) 86 Cal.App.5th 375, 379-380.) On
January 1, 2020, after defendant’s sentencing hearing, Senate Bill No. 136 amended
section 667.5, subdivision (b), to allow for the imposition of a one-year prior prison term
enhancement only for prior convictions based upon specified sexually violent offenses.
(Stats. 2019, ch. 590, § 1.)
In 2022, the Legislature enacted Senate Bill No. 483, establishing a recall and
resentencing procedure for any persons serving a term of incarceration, whose sentences
included an invalid prior prison term enhancement. (See § 1172.75, subd. (c).) The
resentencing process begins with corrections officials notifying the court that an
incarcerated person is serving a term for a judgment that includes an invalid
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section 667.5, subdivision (b) enhancement. (See § 1172.75, subd. (b).) It is well-settled
that neither a defendant nor someone acting upon the defendant’s behalf can seek recall
for resentencing by filing a motion or petition. (People v. Cota (2023) 97 Cal.App.5th
318, 332 [“section 1172.75 does not authorize a defendant to seek resentencing on his or
her own motion or petition”].)
Section 1172.75 establishes a deadline under which the secretary of the CDCR and
county correctional administrators must identify persons in custody serving sentences that
include an enhancement under section 667.5. First, “[b]y March 1, 2022, for individuals
who have served their base term and any other enhancements and are currently serving a
sentence based on the [affected] enhancement.” And second, “[b]y July 1, 2022, for all
other individuals.” (§ 1172.75, subd. (b)(1),(2).) Resentencing for the “priority” group
was statutorily required to occur by October 1, 2022, and “[b]y December 31, 2023, for
all other individuals.” (§ 1172.75, subd. (c)(1), (2).)
The Legislature made this change retroactive by adding section 1171.1
(Stats. 2021, ch. 728, § 3), which was later renumbered section 1172.75 without
Christianson, Saldana, and Mayberry reasoned that Rhodius’s concern about applying
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
8
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
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
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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.) 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 time defendant entered into his negotiated
plea agreement, the parties agreed that punishment on the prison prior would be stricken.
And 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 “‘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
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‘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.
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.
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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. Lamb, E082846]
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 Andrew Charles Lamb’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 Lamb 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. 11.) 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 Lamb’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 J.
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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 during the original sentencing proceedings. Consequently, a defendant whose enhancement punishment was stricken is ineligible for the resentencing procedure mandated by the statute.
Issues
Whether Penal Code section 1172.75 applies to prior prison term enhancements that were imposed and stricken during the original sentencing.
Whether a defendant is entitled to a full resentencing hearing under section 1172.75 if the punishment for their prison prior was 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.”