People v. Perez CA6

Filed 7/2/24 P. v. Perez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051260 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC942929)

v.

ANGEL PEREZ,

Defendant and Appellant.

Angel Perez appeals a postjudgment order denying his motion under Penal Code section 1172.751 to recall his sentence, remove a prior prison term enhancement (prison prior) imposed pursuant to section 667.5, former subdivision (b), and be resentenced. The trial court denied Perez’s motion, deciding that relief under section 1172.75 was unavailable because the original sentencing court had stayed the punishment associated with the prison prior. For the reasons explained below, we conclude that section 1172.75 applies in cases like this, where the judgment includes a prison prior that was imposed but stayed. We thus reverse the trial court’s order and remand for recall of Perez’s sentence and for resentencing.

1 Unspecified statutory references are to the Penal Code.

I. PROCEDURAL BACKGROUND2 In July 2011, a jury found Perez guilty of six counts of second degree robbery (§§ 211, 212.5, subd. (c)), three counts of false imprisonment (§§ 236, 237), two counts of reckless evading (Veh. Code, § 2800.2, subd. (a)), and one count of vandalism (§ 594, subds. (a), (b)(1)).3 The jury found true firearm allegations (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c)(1)), gang allegations (§ 186.22, subd. (b)(1)(C)), and allegations that Perez had taken property valued at more than $65,000 (§ 12022.6, subd. (a)(1)) in the commission of the robberies. The jury also found true firearm and gang allegations as to the false imprisonment counts. The trial court found true that Perez had suffered a strike prior conviction of burglary (§§ 459, 460, subd. (a), 667, subds. (b)–(i), 1170.12), which also was a serious felony conviction (§ 667, subd. (a)), and that Perez had served a prison term for that burglary conviction (§ 667.5, former subd. (b)). In January 2012, the trial court sentenced Perez to an aggregate term of 47 years 8 months in prison (including a stayed term for the prison prior) and ordered Perez to pay restitution. Perez appealed. In January 2014, a panel of this court accepted the People’s concessions on appeal that “the trial court erred in imposing terms for both the section 186.22 gang enhancement and the section 12022.53 firearm enhancement” and that “the court’s restitution order [was] not supported by the evidence.” This court reversed the judgment and directed the trial court to “strike the section 12022.53 enhancement on those counts where there is also a section 186.22 gang enhancement,” “[to] resentence [Perez] accordingly,” and to hold a new restitution hearing.