People v. Frye CA3

Filed 11/28/23 P. v. Frye CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ----

THE PEOPLE, C096975

Plaintiff and Respondent, (Super. Ct. No. 26719)

v.

JOE EDWARD FRYE,

Defendant and Appellant.

At a resentencing hearing, the trial court struck a prior prison term enhancement on defendant Joe Edward Frye’s sentence and reimposed the remainder of the original sentence. On appeal, defendant claims the trial court did not exercise informed discretion because it limited its review to the prior prison term enhancement. Though defendant forfeited this claim by failing to raise it below, we exercise our discretion to reach the issue, vacate the sentence, and remand for resentencing.

FACTS AND HISTORY OF THE PROCEEDINGS As relevant here, in 1980, a jury found defendant guilty of second-degree murder (Pen. Code, § 187; undesignated statutory references are to the Penal Code) and found true an allegation that defendant used a deadly or dangerous weapon (§ 12022, subd. (b)). Defendant admitted he had been convicted of a prior felony (§ 667.5, subd. (b)). The trial

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court sentenced defendant to 15 years to life in prison for the murder conviction and one year each for the two enhancements. In 2022, the Department of Corrections and Rehabilitation informed the trial court that defendant was serving a sentence for a prior prison term enhancement declared legally invalid by section 1172.75 (former section 1171.1). (Effective June 30, 2022, section 1171.1 was renumbered section 1172.75, with no substantive changes. (Stats. 2022, ch. 58, § 12.) We will cite to the current section 1172.75 throughout this opinion.) On July 8, 2022, the trial court struck the sentence for the prior prison term enhancement and resentenced defendant to the same term for the murder conviction and deadly weapon enhancement, resulting in a new aggregate sentence of 16 years to life. At the resentencing hearing, defendant asked the court: “Is there something I can do to get some kind of relief to the courts here? Because I’ll be 70 years old in October. So I’ve been locked up 42 years on 17 to life.” The court responded: “That issue is not in front of me this morning, Mr. Frye. I don’t make that determination. Somebody else does. My job today is just to resentence you pursuant to the change in the law that has occurred.” On September 12, 2022, the trial court received defendant’s notice of appeal.