California Court of Appeal May 21, 2025 No. E083309Unpublished
Filed 5/21/25 P. v. Tobias 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083309
v. (Super.Ct.No. RIF104131)
WILLIE JUNIOR TOBIAS, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
Marcia R. Clark, 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, A. Natasha Cortina and Liz Olukoya, for
Plaintiff and Respondent.
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Defendant and appellant Willie Junior Tobias, Jr., appeals the order of the
Riverside County Superior Court finding him ineligible for resentencing under Penal
Code section 1172.75.1 We will affirm.
BACKGROUND
In 2003, a jury found defendant guilty of assault by means of force likely to
(§ 667.5, subd. (a)) and four prison priors (§ 667.5, subd. (b)). The trial court sentenced
defendant to 43 years to life in state prison, and imposed but stayed four one-year terms
for the prison priors.
Defendant appealed the judgment. (People v. Tobias (June 21, 2004, E033801)
[nonpub. opn.].) We remanded the matter to the trial court with directions to amend
defendant's abstract of judgment to strike one of the prison prior enhancements that had
been imposed and stayed, and affirmed the judgment in all other respects. (Ibid.)
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
1 All subsequent statutory references are to the Penal Code
2
amendment was retroactive to any case in which the judgment was not final. (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
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.
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, we will refer to the provision by its current number
3
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
3 On our own motion, we (i) took judicial notice of the declarations of Aimee Vierra and David McKinney, filed in case No. E082642, and (ii) augmented the record in this case to include the CDCR list attached to those declarations. That list, dated June 16, 2022, sets forth the names of persons eligible for relief under section 1172.75 in active cases for Riverside County. Defendant’s name appears on page 29.
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granted, and People v. Saldana (2023) 97 Cal.App.5th 1270, review granted March 12,
2024, S283547. It found defendant was ineligible for resentencing under section
1172.75, subdivision (d) and denied defendant’s request for resentencing. Defendant then
timely noticed this appeal from the denial of his petition for resentencing.
DISCUSSION
Defendant argues the court erred (i) when it failed to afford him a full resentencing
hearing pursuant to section 1172.75, (ii) when it conducted the section 1172.75 hearing
without defendant being present, and (iii) and when it failed to strike the legally invalid
prison prior enhancements.
1. The Failure to Conduct a full Resentencing Hearing
As noted ante, appellate courts are divided on the issue whether full resentencing
hearings are 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, which held 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. (Rhodius, supra,
97 Cal.App.5th at pp. 44–49, review granted.) 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.)
On appeal, defendant argues he should have been afforded a resentencing hearing
for each of several reasons: (1) the language of section 1172.75 does not limit its
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application to prison prior sentences that have been executed; (ii) providing full
resentencing for all defendants comports with Legislature’s goals of criminal justice
reform, eliminating racial disparities in the justice system and requiring remedial action;
and; (iii) the statute’s legislative history, including its refusal to enact section 1172.75 as a
purely administrative adjustment in particular, supports the 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 solely 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
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a term of incarceration in jail or prison for these repealed sentence enhancements.”
(Stats. 2021, ch. 728, § 1, italics added.)
We also disagree with defendant’s conclusion that our opinion in Rhodius was
incorrectly decided. The Supreme Court has granted review in Christianson and
Rhodius, and we see no reason to abandon Rhodius unless and until that court instructs us
to take a different approach.
2. Defendant’s Absence From the Hearing
Defendant argues the finding defendant is ineligible for a full resentencing must be
reversed because he did not attend the any of the hearings concerning his eligibility for
section 1172.75 relief and there is no valid waiver of his attendance in the record.
Defendants have constitutional and statutory rights to be personally present at any
proceeding in which their appearance is necessary to protect their opportunity for
effective cross-examination or to permit them to participate at a critical stage and enhance
the fairness of the proceeding. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I,
§ 15; §§ 977, 1043; People v. Flinner (2020) 10 Cal.5th 686, 710 (Flinner).) But, none
of those provisions require defendants to be personally present at proceeding where their
presence bears no reasonable, substantial relation to their defend against the charges
against them or otherwise contribute to the fairness of the proceedings. (People v.
To prevail on a claim that their constitutional or statutory rights to be present at a
hearing have been violated, defendants must establish that their absence prejudiced their
case. (Flinner, supra, 10 Cal.5th at p. 710; Blacksher, supra, 52 Cal.4th at p. 799.)
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Here, defendant has failed to establish how he was prejudiced when the court
proceeded. He simply notes that the court in People v. Velasco found the record did not
show an adequate waiver of Mr. Velasco’s right to be present at his section 1172.75
resentencing hearing. (People v. Velasco (2023) 97 Cal.App.5th 663, 673–674.) The
circumstances in Velasco are decisively distinguishable from the circumstances here. In
that case, the court recalled the defendant’s sentence and held a full resentencing hearing.
(Id., at p. 668.) Here, the court found as a matter of law that defendant was not eligible
for resentencing. Defendant has not undertaken to demonstrate how his presence would
have had affected that decision.
3. The Failure to Strike the Stayed Prison Priors
Defendant argues the trial court erred when it did not strike the stayed prison
priors because, even if this court affirms the trial court’s finding that defendant is not
eligible for a section 1172.75 resentencing hearing, he is “still entitled to have [prison
priors] stricken.” The authority he cites does not support his claim. That said, continued
inclusion of the prison prior enhancements on the abstract of judgment may cause
confusion in the future. Accordingly, we will exercise our inherent authority to order the
trial court to strike the prison prior enhancements in their entirety as legally invalid and to
issue a new abstract of judgment that does not contain any reference to them.
DISPOSITION
The order finding defendant ineligible for resentencing under section 1172.75,
subdivision (d) is affirmed. We remand the matter to the superior court with directions to
strike the stayed prison prior enhancements, to issue an amended abstract of judgment
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eliminating all references to those enhancements, and to forward the amended abstract of
judgment to the CDCR.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J. MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is ineligible for resentencing under Penal Code section 1172.75 if the prison prior enhancements were stayed rather than executed, but ordered the trial court to strike the invalid enhancements from the abstract of judgment.
Issues
Whether a defendant is entitled to resentencing under Penal Code section 1172.75 when prison prior enhancements were imposed and stayed rather than executed.
Whether a defendant has a constitutional or statutory right to be present at a hearing determining eligibility for resentencing under section 1172.75.
Whether the trial court must strike stayed prison prior enhancements that are legally invalid under current law.
Disposition. Affirmed with directions.
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.”
“we will exercise our inherent authority to order the trial court to strike the prison prior enhancements in their entirety as legally invalid”