People v. Fenstermacher CA2/6

Filed 5/24/24 P. v. Fenstermacher CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B326172 (Super. Ct. No. 17CR80001) Plaintiff and Respondent, (Santa Barbara County)

v.

JASON LEE FENSTERMACHER,

Defendant and Appellant.

Penal Code1 section 1172.75 retroactively invalidates prior prison term enhancements (§ 667.5, subd. (b)) for prisoners currently serving time for such enhancements. In 2017, Jason Lee Fenstermacher was convicted of robbery (§ 212.5, subd. (a)) (count 1); burglary (§ 459) (count 2); and impersonating an officer (§ 538d, subd. (a)) (count 3). For count 1 the court imposed two prior serious felony enhancements (§ 667, subd. (a)); an out-on- bail enhancement (§ 120221.1, subd. (b)); and two one-year prior

1 All statutory references are to the Penal Code.

prison term enhancements (§ 667.5, subd. (b)), which the court stayed. Fenstermacher appeals a judgment following the trial court’s 2023 order denying his request for a full resentencing hearing under section 1172.75. Fenstermacher fell within the purview of the three strikes law. The trial court imposed an aggregate sentence of 20 years for this case and 13 years four months for a companion case, yielding a total aggregate sentence of 33 years four months. We conclude that Fenstermacher is not eligible for a full resentencing hearing under section 1172.75 because his prior prison term was dismissed. We affirm. FACTS In 2022, the California Department of Corrections and Rehabilitation (CDCR) issued a notice to the trial court containing a list of currently incarcerated individuals “who are potentially eligible for resentencing pursuant to Senate Bill [No.] 483.” (§ 1172.75.) The trial court scheduled a hearing to determine if Fenstermacher was eligible for resentencing under section 1172.75 because his sentence included prior prison term enhancements that were invalidated by Senate Bill No. 483. The People claimed Fenstermacher was ineligible for resentencing. They said section 1172.75 applies to individuals in custody who are “currently serving a term for a now-invalid sentencing enhancement,” but Fenstermacher was not currently “serving a term for his [section 667.5, subdivision (b)] priors” because those two one-year priors were “stayed, not imposed.” Fenstermacher claimed he was entitled to a full resentencing hearing pursuant to section 1172.75.