People v. Tell CA2/8

Filed 5/28/25 P. v. Tell CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B336479

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA084357-01) v.

RICHARD EUGENE TELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Richard M. Goul, Judge. Reversed.

Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Shezad H. Thakor and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.

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The trial court denied resentencing (Pen. Code,1 § 1172.75), rejecting appellant Richard Tell’s assertion that his sentence included an invalid enhancement for serving a prior felony prison term. The trial court held that Tell was not eligible for resentencing because the enhancement for the prior prison term had been imposed and stayed rather than imposed and executed. This appeal requires us to decide whether a stayed sentence for a prior prison term disqualifies a defendant from resentencing. We hold that a sentence imposed for a prior prison term entitles a defendant to resentencing, whether or not the sentence was stayed. BACKGROUND In 2012, a jury convicted appellant Richard Tell of attempted voluntary manslaughter, second degree robbery, possession of ammunition by a felon, and assault with a deadly weapon. The jury and the court also found true several sentencing enhancements. Among other things, the court found that Tell had served a prior prison term for assault with a deadly weapon. For that prior prison term, the court imposed and stayed a one-year sentence pursuant to former Penal Code section 667.5, subdivision (b). We affirmed the judgment of conviction in People v. Tell (Feb. 6, 2013, B239244 [nonpub. opn.].) On July 10, 2023, the trial court ordered a review of Tell’s case “for all purposes including but not limited to . . . resentencing.”