California Court of Appeal May 21, 2025 No. E082914Unpublished
Filed 5/21/25 P. v. Becker 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082914
v. (Super.Ct.No. HEF970137)
RODNEY LEE BECKER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Cindi B. Mishkin, 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 Beesley and Daniel Rogers,
for Plaintiff and Respondent.
1
Defendant and appellant Rodney Lee Becker appeals the order of the Riverside
County Superior Court finding defendant ineligible for resentencing pursuant to Penal
Code Section 1172.75.1 We will affirm.
In 1998, defendant was sentenced to a term of 25 years to life for possession of
methamphetamine in violation of Health and Safety Code section 11377 and for a prior
strike (§§ 667, subds. (d), (e)(2), 1170.12, subds. (b) (c)(2)). The court struck two prison
term enhancements (§ 667.5, subd. (b)).
1. The Developments Concerning the Elimination of Prior Prison Enhancements Other
Than Those Involving Certain Sexually Violent Crimes
In 2019, the Legislature amended subdivision (b) of section 667.5 (amended
§ 667.5(b)) to eliminate prior prison term enhancements unless the prior prison term was
for specific sexually violent offenses. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) The
amendment was retroactive to any case in which the judgment was not final on January 1,
2020. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342.)
In 2022, section 1172.75 became effective.2 (Stats. 2021, ch. 728, § 3, eff. Jan. 1,
2022.) Subdivision (a) of that provision declares legally invalid any prison prior sentence
1 All further statutory references are to the Penal Code unless otherwise noted.
2 At the time of its enactment in January 2021, section 1172.75 was numbered section 1171.1, but was renumbered effective June 30, 2022, with no substantive changes to the statute (Stats. 2022, ch. 58, § 12). For the sake of simplicity, will refer to the provision by its current number.
2
enhancement defined in amended section 667.5(b) that was imposed prior to January 1,
2020. (§ 1172.75, subd. (a).)
In relevant part, section 1172.75 requires the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) to identify persons in their
custody currently serving a term for a judgment that includes a prison prior enhancement
coming within subdivision (a) of section 1172.75 and to provide the name of each person
and other specified identifying information to the sentencing court. (§ 1172.75,
subd. (b).)
Upon receiving names from CDCR, the sentencing court must review each
person’s current judgment to be sure it includes a section 1172.75, subdivision (a)
enhancement. (§ 1172.75, subd. (c).) If the court determines the current judgment
includes the enhancement, it must recall the sentence and resentence the defendant.
(Ibid.)
Following the passage of section 1172.75, a dispute arose in the courts of appeal
with respect to the meaning of the word “imposed” in subdivision (a). In People v.
Rhodius, this court held “imposed” means a defendant is entitled to a resentencing
hearing only if the prison prior was imposed and executed. (People v. Rhodius (2023) 97
February 21, 2024, S283189, a panel of Division One of this court concluded “imposed”
includes sentences imposed and stayed. In People v. Espino (2024) 104 Cal.App.5th 188,
196–197 (Espino), review granted October 23, 2024, S286987, the Sixth District decided
defendants are entitled to resentencing whether punishment for the prison prior was
executed, stayed, or stricken.
2. The Application of Section 1172.75 in Defendant’s Case, Resulting in this Appeal
Defendant was included in a CDCR list of persons sentenced in Riverside County
considered to be eligible for resentencing relief because of a prison prior and the trial
court set a hearing.3 At the hearing, the court found defendant was not eligible for
resentencing. Defendant timely noticed this appeal from the denial of resentencing “per
Rhodius” (italics added).
3 We granted defendant’s request to take judicial notice of the declarations of Aimee Vierra and David McKinney, filed in case No. E082642, and the CDCR list attached to those declarations. That list, dated June 16, 2022, sets for the the names of persons eligible for relief under section 1172.75 in active cases for Riverside County. Defendant’s name appears on page 20 of the list.
4
DISCUSSION
Defendant argues reversal of the court’s order and remand for a new sentencing
hearing is called for because he should have been afforded a full resentencing hearing
pursuant to section 1172.75.
As noted ante, appellate courts are divided on the issue whether a full resentencing
hearing is required when a defendant’s sentence includes a prison prior that is not
executed. In the absence of direction to the contrary from California’s Supreme Court on
the issue, we continue to adhere to our decision in Rhodius, supra, 97 Cal.App.5th at
pages 44–49, review granted, that is, section 1172.75 resentencing relief applies only to
sentences for prison priors that are imposed and executed, not to those that have been
stayed or the punishment stricken. Our conclusion is bottomed on the statute’s
requirement that the elimination of the repealed prison prior enhancement must result in
the reduction of the sentence. (§ 1172.75, subd. (d)(1); Rhodius, at pp. 42-45, review
granted.)
Here, defendant’s prison prior was stricken. Because defendant’s sentence was not
subject to reduction, he was not entitled to a full resentencing hearing.
Defendant posits he should have been afforded a full hearing because (1) the plain
language of section 1172.75 does not limit its application to prison prior sentences that
have been executed, and (ii) the provision’s legislative history, including its refusal to
enact section 1172.75 as a purely administrative correction in particular, supports the
5
notion that resentencing is required in every case involving a section 1172.75,
subdivision (a) prison prior.
We are not persuaded. As we explained in Rhodius, subdivision (d)(1) of section
1172.75 requires resentencing of defendants with a prison prior to result in a lesser
sentence than the one originally imposed unless there is clear and convincing evidence
that a reduced sentence would endanger public safety. (Rhodius, supra, 97 Cal.App.5th
at p. 43, review granted.) The only sensible reading of that provision is that it is intended
to apply only in cases in which the prison prior actually increased a defendant's sentence.
(Id., at pp. 43–44.) To expand the lesser sentence requirement to cases in which the
enhancement was ordered and then stayed or stricken would mean the sentencing court
must arbitrarily reduce prison terms imposed pursuant to other statutes having nothing to
do with a legally invalid prison prior. (Ibid.)
Moreover, the Legislature is known to use the word “impose” as shorthand for
impose and then execute. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126–1127.) That
it did so with respect to section 1172.75 is made clear in the uncodified preamble to
Senate Bill No. 483 in which the Legislature found and unambiguously declared that, as
part of its efforts to ensure equal justice and address systemic racial bias in sentencing, it
intended to retroactively apply amended section 667.5(b) to “all persons currently serving
a term of incarceration in jail or prison for these repealed sentence enhancements.”
(Stats. 2021, ch. 728, § 1, italics added.)
6
DISPOSITION
The order finding defendant ineligible for resentencing under section 1172.75 is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J. MILLER J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant whose prior prison term enhancement was stricken at the time of sentencing is ineligible for resentencing under Penal Code section 1172.75, as the statute only applies to enhancements that were imposed and executed.
Issues
Whether a defendant is entitled to resentencing under Penal Code section 1172.75 when their prior prison term enhancement was stricken rather than executed.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“section 1172.75 resentencing relief applies only to sentences for prison priors that are imposed and executed, not to those that have been stayed or the punishment stricken.”
“Here, defendant’s prison prior was stricken. Because defendant’s sentence was not subject to reduction, he was not entitled to a full resentencing hearing.”