California Court of Appeal Mar 30, 2026 No. E084763Unpublished
Filed 3/30/26 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E084763
v. (Super.Ct.No. RIF078014)
CONFESOR HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with instructions.
Ariana D’Agostino, 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, Elizabeth
Renner, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
1
Confesor Hernandez appeals the trial court’s order declining to resentence him
under Penal Code section 1172.75, but striking a prison prior enhancement that had
previously been imposed and stayed.1 Hernandez argues section 1172.75 entitles him to
a full resentencing. We reverse and remand for resentencing under section 1172.75.
In 1999 a jury convicted Hernandez of first degree murder (§ 187, subd. (a)).
Hernandez subsequently admitted two prior prison terms. The court sentenced
Hernandez to 25 years to life for the murder conviction, plus 10 years for a firearm
enhancement (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). It also imposed one-year
sentences under section 667.5, subdivision (b), for each of the prior prison terms, but
ordered the “[t]ime imposed” stayed for each.
In 2011, following Hernandez’s appeal, the trial court struck one of the prior
prison term enhancements, stating both that it “orders Prior(s) 1 Stricken,” and that the
“[s]entence previously imposed is vacated as to Prior 1.”
In 2023 the California Department of Corrections and Rehabilitation (CDCR)
identified Hernandez, among others, as an inmate serving a sentence that contained a
prior prison term enhancement, and referred him to the trial court for possible
resentencing under section 1172.75. Upon the agreement of the parties, the court
incorporated by reference the reporter’s transcript of another case dealing with an
identical issue. In that case the court concluded defendants serving sentences with
1 Unlabeled statutory citations refer to the Penal Code.
2
imposed but stayed prior prison term enhancements were not eligible for resentencing
under section 1172.75, following one line of cases in what was at the time a bona fide
split in authority. (See People v. Rhodius (2025) 17 Cal.5th 1050, 1056-1057 (Rhodius).)
Accordingly, the trial court determined Hernandez was not eligible for
resentencing under section 1172.75, because his remaining prior prison term
enhancement was imposed but stayed. Nevertheless, because such enhancements cannot
be imposed and stayed (see People v. Langston (2004) 33 Cal.4th 1237, 1241), and
because section 1172.75 still invalidates all prior prison term enhancements, the court
struck the enhancement without engaging in further resentencing.
Hernandez timely appealed.
DISCUSSION
Legislation effective at the beginning of 2020 prospectively abolished most prior
prison enhancements that were previously imposed under section 667.5, subdivision (b).
(Senate Bill No. 136 (2019-2020 Reg. Sess.).) Our Legislature made that abolition
retroactive in 2022 through Senate Bill No. 483 ((2021-2022 Reg. Sess.); Stats 2021,
ch. 728), which enacted section 1171.1, later renumbered as section 1172.75. The statute
declares invalid most prior prison enhancements “imposed” before the enhancements
were abolished, with just one exception, for defendants convicted of sexually violent
offenses. (§ 1172.75, subd. (a).)
Prior to the party’s briefing, Court of Appeal authority split regarding whether
section 1172.75 relief is available for defendants whose sentences include enhancements
3
that were imposed and stayed. (See Rhodius, supra, 17 Cal.5th at pp. 1056-1057.)
However, after the People submitted their respondent’s brief and before Hernandez
submitted his reply brief, our Supreme Court addressed this split of authority in Rhodius,
supra, 17 Cal.5th 1050, concluding: “[S]ection 1172.75(a) applies to enhancements that
were imposed as part of the defendant’s original judgment, regardless of whether the
enhancement was stayed or executed. If the enhancement is no longer authorized under
the current version of section 667.5(b), section 1172.75(a) renders the enhancement
invalid. And the retroactive invalidation of the previously imposed enhancements in turn
mandates resentencing under section 1172.75, according to the procedures set forth
therein.’ ” (Id. at p. 1068.)
We are bound by Rhodius’s holding that section 1172.75 invalidates prison prior
enhancements even where the punishment on them was stayed, and that a defendant
whose sentence includes such a now-invalid enhancement must be resentenced under
current law.2
Because we remand for resentencing, we need not address the parties’ further
contention that the trial court erred by not recalculating Hernandez’s custody credits
when it modified his sentence. Upon resentencing, the court will be required to calculate
all credits Hernandez has accrued since his initial sentencing and award them against his
new sentence. (See § 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 37 [“the trial
2 Since we conclude Hernandez is entitled to full resentencing because of his stayed prior prison term enhancement, we need not address whether the previously stricken prior prison term enhancement would also qualify him for resentencing.
4
court, having modified defendant’s sentence on remand, was obliged, in its new abstract
of judgment, to credit him with all actual days he had spent in custody, whether in jail or
prison, up to that time.”].)
DISPOSITION
We reverse the trial court’s order denying relief under section 1172.75. We
remand the matter to the trial court with directions to recall his sentence and hold a full
resentencing hearing under section 1172.75, subdivision (d).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J. We concur:
MILLER Acting P. J.
CODRINGTON J.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1172.75 applies to prior prison term enhancements that were imposed but stayed, and that such enhancements mandate a full resentencing under the statute.
Issues
Whether a defendant is eligible for resentencing under Penal Code section 1172.75 when their prior prison term enhancement was imposed but stayed.
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.”