People v. Cline CA4/2

• Court: California Court of Appeal
• Decided: February 21, 2025
• Docket: E083060
• Status: Unpublished

Opinion

Filed 2/21/25 P. v. Cline CA4/2 See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083060

v. (Super.Ct.No. RIF1404943)

TIMOTHY ROBERT CLINE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed with directions.

John F. Schuck, 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, Kelley

Johnson, and Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and

Respondent.

1 At a hearing pursuant to Penal Code section 1172.75,1 the court found defendant

and appellant Timothy Robert Cline ineligible for a full resentencing hearing. On appeal,

defendant contends this court should reverse the order and remand the matter to the trial

court with directions to hold a full resentencing hearing. We affirm with directions.

I. PROCEDURAL BACKGROUND

On September 23, 2016, a jury found defendant guilty of robbery in concert

(§§ 211 & 213, subd. (a)(1)(A)), count 1), making a criminal threat (§ 422; count 2), and

burglary (§ 459; count 3). The jury found true allegations that defendant personally used

a firearm during the commission of all three offenses (§§ 12022.53, subd. (b), 1192.7,

subd. (c)(8), 12022.5, subd. (a)). Defendant thereafter admitted he had suffered seven

prior prison terms (§ 667.5, subd. (b)) and a prior out-of-state conviction (§ 667,

subd. (a)). (People v. Cline (Aug. 29, 2018, E068069) [nonpub. opn.] (Cline).)

The court found that the out-of-state conviction qualified as both a prior serious

felony (§ 667, subd. (a)) and prior strike conviction (§ 1170.12, subd. (c)(1)). The court

stayed punishment on the prior prison terms. The court thereafter sentenced defendant to

state prison for 27 years. (Cline, supra, E068069.)

1 All further statutory references are to the Penal Code.

2 Defendant appealed. This court held insufficient evidence supported the court’s

finding that the out-of-state conviction qualified as a prior serious felony and prior strike

conviction. Thus, this court remanded the matter to the trial court to hold a new hearing

on the prior out-of-state conviction and resentence defendant accordingly. In all other

respects, this court affirmed the judgment. (Cline, supra, E068069.)

At the hearing on remand on January 25, 2019, the parties stipulated that the prior

out-of-state conviction did not qualify as a prior serious felony or prior strike conviction.

Defense counsel argued the court had discretion to strike the allegations that

defendant personally used a firearm during the commission of all three offenses. The

court ruled, “Taking everything into consideration, particularly inclusive of any of the

prior criminal history of the defendant, I will choose to, in the exercise of my discretion,

not change my mind. It will remain as it was.”

The court resentenced defendant to 16 years of imprisonment. The court did not

mention the prior prison terms when imposing judgment. Nonetheless, the resentencing

minute order and new abstract of judgment reflect that the court imposed but stayed

sentence on all seven prior prison terms.

3 On December 7, 2022, the People filed opposition to any resentencing of

defendant pursuant to section 1172.75.2 The People argued that defendant was ineligible

for a full resentencing hearing because he was not serving time for a prior prison term

enhancement, no time could be legally imposed on any of the enhancements,

resentencing on the enhancements would not reduce his sentence as required by statute,

and that the court had previously declined to exercise its discretion to strike any of

defendant’s gun enhancements.

After numerous continuances, on December 21, 2023, at a hearing at which

counsel represented defendant, the court indicated that it had read and considered the

decisions in People v. Rhodius (2023) 97 Cal.App.5th 38 (Rhodius), review granted

February 21, 2024, S283169; People v. Renteria (2023) 96 Cal.App.5th 1276, 1282-1283

(Renteria); People v. Christianson (2023) 97 Cal.App.5th 300, 311 (Christianson),

2 On November 14, 2022, the court appointed counsel for defendant in this matter. It is unclear from the record as originally filed how the matter initially came to the court’s attention. “[S]ection 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. [Citation.]” (People v. Cota (2023) 97 Cal.App.5th 318, 332; accord, People v. Newell (2023) 93 Cal.App.5th 265, 268; accord, People v. Burgess (2022) 86 Cal.App.5th 375, 382 [lower and appellate courts lack jurisdiction over a request for section 1172.5 relief brought solely by a defendant].) “Of course, ‘the defendant . . . bears the burden to provide a record on appeal which affirmatively shows that there was error below, and any uncertainty in the record must be resolved against the defendant.’ [Citation.]” (People v. Moore (2021) 68 Cal.App.5th 856, 866; ibid. [“Because appellant has failed to provide an adequate record for review, his claim fails. [Citation.]”].) Here, this court satisfied defendant’s burden of producing a record that establishes the proceeding below was initiated by the CDCR. On our own motion, we took judicial notice of a CDCR list from another case, which identifies individuals eligible for section 1172.75 relief; defendant’s name appears on that list.

4 review granted February 21, 2024, S283189; and People v. Saldana (2023) 97

Cal.App.5th 1270, 1275 (Saldana), review granted March 12, 2024, S283547. The court

found defendant ineligible for resentencing and denied defendant’s “motion.” The court

vacated the previous “sentence” on defendant’s prior prison terms, imposed a one-year

sentence on each, and then struck punishment on the enhancements.3

II. DISCUSSION

Defendant contends this court should reverse and remand the matter with

directions to the trial court to hold a full resentencing hearing. The People maintain we

should affirm the trial court’s order in reliance on Rhodius. We affirm with directions.

Senate Bill No. 483 (Senate Bill 483) (2021-2022 Reg. Sess.) added

section 1171.1 to the Penal Code (Stats. 2021, ch. 728), which the Legislature

subsequently renumbered, without substantive change, as section 1172.75 (Stats 2022,

ch. 58, § 12, eff. June 30, 2022). (Rhodius, supra, 97 Cal.App.5th at p. 42 & fn. 4.)

“Section 1172.75, subdivision (a), states that ‘[a]ny sentence enhancement that was

imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for

any enhancement imposed for a prior conviction for a sexually violent offense . . . is

legally invalid.’ [Citation.] Section 1172.75 instructs the CDCR to identify those

persons in their custody currently serving a term for a judgment that includes an

enhancement under section 667.5(b) (excluding sexually violent offenses) and provide

such information to the sentencing court that imposed the enhancement. [Citation.]

3 No reporter’s transcript of the hearing is contained in the record.

5 Subsequently, the sentencing court ‘shall review the judgment and verify that the current

judgment includes a sentencing enhancement described in subdivision (a).’ [Citation.]

‘If the court determines that the current judgment includes an enhancement described in

subdivision (a), the court shall recall the sentence and resentence the defendant.’

[Citation.]” (Ibid.)

“Whether section 1172.75 entitles [defendant]—who is currently serving time on

an abstract of judgment that includes a stayed but now invalid section 667.5,

subdivision (b) enhancement—to a full resentencing is a question of law that we review

de novo, under well-settled standards of statutory interpretation. [Citations.]”

(Christianson, supra, 97 Cal.App.5th at p. 308.)

“Section 1172.75[,] subdivision (d)(1)’s requirement that the resentencing shall

result in a lesser sentence than the one originally imposed necessitates the conclusion that

the repealed enhancement increased the length of the sentence. The only way for the

repealed enhancement to have increased the length of a sentence is for the enhancement

to have been imposed and executed. If the repealed enhancement was imposed and

stayed, the sentence would not have been increased, as was the case here. To interpret

‘imposed’ as used in section 1172.75, subdivision (a), to include when a sentence was

‘imposed and stayed’ would require any sentencing court faced with an ‘imposed and

stayed’ enhancement to arbitrarily lower a sentence simply because the judgment

contained a stayed enhancement.” (Rhodius, supra, 97 Cal.App.5th at p. 44; compare

People v. Espino (2024) 104 Cal.App.5th 188, 203 (dis. opn. of Lie, J.) [“So the concept

6 of a sentence enhancement being ‘imposed’ when its punishment was stricken is not one I

claim to comprehend.”], review granted Oct. 23, 2024, S286987; contra, Renteria, supra,

96 Cal.App.5th at pp. 1282-1283 [defendant entitled to full resentencing hearing where

section 667.5 enhancement was imposed and stayed]; accord, Christianson, supra, 97

Cal.App.5th at p. 316, fn. 8; accord, Saldana, supra, 97 Cal.App.5th at p. 1278; accord,

People v. Mayberry (2024) 102 Cal.App.5th 665, 674 (Mayberry), review granted

Aug. 14, 2024, S285853; accord, Espino, at p. 196; see People v. Gray (2024) 101

Cal.App.5th 148, 167 & fn. 14 [“Other courts to have considered this question have

focused on the meaning of the term ‘imposed,’ and have disagreed with Rhodius.”].)

Here, like in Rhodius, the trial court imposed but stayed punishment on the prior

prison term enhancements. Thus, since defendant was not serving a term of judgment

which included a prior prison term enhancement and striking or vacating the prior prison

term enhancement would not result in a lesser sentence than the one originally imposed

as required by section 1172.75, subdivision (d)(1), the court properly denied defendant’s

request for a full resentencing hearing. (Rhodius, supra, 97 Cal.App.5th at p. 44; Auto

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant effectively argues that we are not bound by Rhodius. However,

“Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior

decisions from another panel of the same undivided district or from the same division.”

(Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9.) Rhodius is a decision of this

appellate division.

7 Nonetheless, defendant essentially argues that the majority view of the appellate

courts set forth in Renteria, Christianson, and Saldana comprise a compelling reason to

depart from this court’s decision in Rhodius. We disagree.

In analyzing the legislative history of Senate Bill 483, this court in Rhodius

observed that the Legislature was primarily concerned with providing relief to those who

had served time on rulings deemed unfair, on separating inmates from their families, and

on the costs to the state of incarceration. (Rhodius, supra, 97 Cal.App.5th at pp. 46-48.)

“The findings, costs, and ramifications of . . . Senate Bill 483 cited during the legislative

sessions presuppose inmates who are serving additional time as a result of the sentencing

enhancement under section 667.5(b). The references to financial and familial burdens do

not logically follow if a defendant is not actually serving additional time as the result of

an imposed and executed sentence associated with a section 667.5(b) prior. As such, to

interpret the statute to include enhancements that were imposed and stayed would be

contrary to the legislative intent and the plain language of the statute.” (Id. at pp. 48-49.)

Here, since the court did not execute sentence on the prior prison term

enhancements, striking or vacating them as anything other than an administrative

function would not promote the legislative concerns in passing Senate Bill 483; in other

words, because defendant was not serving time on the enhancements, striking them

would not provide a lessened term for defendant, would not enable him to reunify with

his family, and would not result in any cost savings to the state. We continue to agree

8 with this court’s decision in Rhodius and disagree with the courts in Renteria,

Christianson, Saldana, Mayberry, and Espino.

Moreover, Christianson inaccurately reasoned that a stayed prior prison term

enhancement should be considered imposed because “the trial court retains the ability to

lift the stay and impose the term under certain circumstances, such as if an alternately

imposed term is invalidated.” (Christianson, supra, 97 Cal.App.5th at p. 312.) Contrary

to Christianson’s assertion, a stayed or stricken enhancement could never subsequently

be imposed because the legislature has since invalidated the imposition of punishment on

the enhancements unless they were for a qualifying sexually violent offense. (Mayberry,

supra, 102 Cal.App.5th at p. 676 [“It is clear from the plain language of subdivision (a)

of section 1172.75 that the Legislature rendered sentence enhancements imposed

pursuant to former subdivision (b) of section 667.5 legally invalid, except where imposed

for a qualifying sexually violent offense.”]; Espino, supra, 104 Cal.App.5th at p. 204 (dis.

opn. of Lie, J.) [“[E]ven if a now-invalid enhancement under former section 667.5(b)

could be said to possess some unidentified potential to affect a future sentence or trigger

another collateral consequence of some kind, this would be beyond the ambit of

Senate Bill No. 483.”].)

Here, like in Christianson, none of the underlying convictions for defendant’s

prior prison term enhancements were for sexually violent offenses. (Christianson, supra,

97 Cal.App.5th at p. 311.) Thus, the enhancements could never be legally imposed.

9 Furthermore, to interpret the law to allow a full resentencing hearing for a person

who was “lucky” enough to “only” have punishment on his enhancement stayed but not

to someone who was “unfortunate” enough to have his enhancement completely stricken

strains credulity. (People v. Hardin (2024) 15 Cal.5th 834, 847 [“[T]he requirement of

equal protection ensures that the government does not treat a group of people unequally

without some justification.’ [Citation.]”].) In these circumstances, we see no functional

difference between striking the punishment, staying the punishment, or striking the

enhancement in its entirety.4 Therefore, the court properly denied defendant’s request for

a full resentencing hearing.5

4 Neither of the parties on appeal discuss whether any error by the court in denying defendant a full resentencing hearing was harmless. We note that the resentencing court has already considered and rejected defense counsel’s argument that it should strike all the personal use enhancements. With respect to the section 1172.6 proceedings thereafter, the People below argued, in part, that any resentencing hearing would be pointless because the court had sentenced defendant to the presumptive midterm and had already declined to strike the personal use enhancements. Thus, we observe, without deciding, that any error may have been harmless. (See People v. Lewis (2021) 11 Cal.5th 952, 957-958, 973-975 [The deprivation of a defendant’s right to counsel at a section 1172.6 hearing is state law error only, tested for prejudice as to whether there was reasonable probability in the absence of error the defendant would have obtained a more favorable result.].)

5 A trial court may either impose or strike sentence on a prior prison term enhancement, any other sentence is unauthorized. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 [“Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken.”]; Saldana, supra, 97 Cal.App.5th at p. 1275; People v. Thomas (2013) 214 Cal.App.4th 636, 640 [“Generally, the failure to impose a mandatory enhancement or strike it . . . is a jurisdictional error . . . .”].) “If a judge strikes the enhancement, it’s as if the fact of the enhancement never existed—it will not remain on the defendant’s criminal record nor will it affect them in any potential future sentencing.” (People v. Flores (2021) 63 Cal.App.5th 368, 383.) The problem in part is the use of the

10 III. DISPOSITION

The trial court is directed to strike or vacate the section 667.5, subdivision (b)

enhancements in their entirety, rather than merely the punishment on the enhancements.

The court is further directed to issue a new minute order reflecting the court’s order. The

court is directed to forward a copy of the new minute order to the CDCR. The court’s

order is otherwise affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. I concur:

CODRINGTON J.

word “strike.” It would be more precise and in keeping with the language in California Supreme Court opinions to state that the enhancement is “vacated.” (See, e.g., People v. Morelos (2022) 13 Cal.5th 722, 770.) If the enhancement itself is vacated, it should not appear on the abstract of judgment. Here, the court reimposed sentence and struck punishment on the enhancement. Although the new abstract of judgment no longer reflects the presence of the prior prison term, in abundance of caution, we direct the court below to strike or vacate the enhancement in its entirety.

11 [People v. Cline, E083060]

RAPHAEL, J., dissenting.

Penal Code section 1172.75, subdivision (a)1 declares legally invalid prison prior

enhancements that were “imposed” before 2020. If a defendant has such an

enhancement, the sentence is to be recalled and the defendant resentenced under current

laws, which may be more lenient than those used originally.

Other section 1172.75 subdivisions tell us that an enhancement is “imposed” under

subdivision (a) when the defendant has a “judgment that includes” such an enhancement.

(§ 1172.75, subd. (b); see id. subd. (c) [“judgment includes an enhancement described in

subdivision (a)”].)

Despite that statutory text, the majority concludes that “imposed” in subdivision

(a) means “imposed and executed.” (Maj. opn., ante, at p. 6.) Consequently, because

Timothy Robert Cline’s prison prior enhancements were “imposed and stayed,” the

majority denies him the resentencing that he would receive if they were executed.

The majority’s textual basis for its conclusion is a single phrase in the

resentencing provision, subdivision (d)(1), which requires a “lesser sentence” upon

resentencing. (Maj. opn., ante, at p. 6.) As described in Section I, below, the whole

statute’s text shows that “imposed” encompasses any qualifying prison priors that were

imposed, regardless of whether their punishment was stayed. The section explains why

the term “lesser sentence,” if anything, undermines the majority’s view.

1 Undesignated statutory citations in this dissent refer to the Penal Code.

1 The majority, moreover, does not even allude to the express purpose of section

1172.75’s resentencing provisions: to apply other new sentencing laws to eliminate

disparities and promote uniformity. Creating a disparity with those granted this benefit,

the majority denies Cline resentencing for the sole reason that his sentencing judge stayed

the punishment on his enhancements. Today’s opinion thereby undermines the purposes

articulated in the statute.

We need not rely on legislative history, but section II below will explain how the

majority misapprehends the legislative intent by omitting the history of the resentencing

provisions from its consideration of the statute’s history. Section III below will explain

that the majority’s disposition, directing the trial court to strike Cline’s enhancements,

lacks authority. The Legislature has authorized recall and resentencing, not striking

enhancements.

I

Legislation effective in 2020 prospectively abolished most prior prison

enhancements that had been imposed under section 667.5, subdivision (b). (Senate Bill

No. 136 (2019-2020 Reg. Sess.); Stats 2019, ch. 590.) 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 re-numbered as section 1172.75.

The first subdivision of this section contains the word “imposed” at issue here. It

declares invalid almost any prior prison enhancement that had been imposed before the

enhancements were abolished. That subdivision contains just one exception, for

2 defendants convicted of sexually violent offenses. It states: “[a]ny sentence enhancement

that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5,

except for any enhancement imposed for a prior conviction for a sexually violent offense

. . . is legally invalid.” (§ 1172.75, subd. (a) [italics added].)

Subdivision (a) contains no exception for enhancements that were imposed and

stayed. (§ 1172.75, subd. (a).) When we interpret a statute, we are to start with the usual

and ordinary meaning of its terms in the statutory context. (E.g., Make UC a Good

Neighbor v. Regents of the University of California (2024) 16 Cal.5th 43, 55.)

Ordinarily, an enhancement placed in a judgment is described as “imposed” even if the

punishment is stayed. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1163

[describing prior serious felony enhancement as “imposed and stayed”].) Considering the

ordinary language of subdivision (a) alone, there is no reason to read into it an exclusion

that the Legislature could have added but did not. (People v. Mayberry (2024) 102

Cal.App.5th 665, 676 [“plain language” of subdivision (a) includes imposed and stayed

enhancements], review granted Aug. 14, 2024, S285853.)

The Legislature could use “imposed” as an abbreviated way to communicate

“imposed and executed,” so the majority is at least correct that our interpretation need not

stop at subdivision (a) alone. (§ 1172.75, subd. (a).) Analyzing a different statute, our

Supreme Court found “the word ‘impose’ . . . must be interpreted as shorthand for

‘impose and then execute’ to make sense.” (People v. Gonzalez (2008) 43 Cal.4th 1118,

1127.) Here, though, the rest of section 1172.75 shows that we need not read the word as

3 shorthand for the statute to “make sense.” Indeed, in People v. Renteria (2023) 96

Cal.App.5th 1276, 1282 (Renteria), almost two years after the statute was enacted, even

the People conceded that the law “squarely applies” to “imposed and stayed”

enhancements. The People’s view of the ordinary meaning, well after heavy litigation on

the statute had begun, indicates that the shorthand interpretation is unnecessary for the

statute to “make sense.”

The rest of section 1172.75 provides various reasons to conclude that we should

not read into subdivision (a) an exclusion for “imposed and stayed” enhancements.

A. Subdivision (b)

Subdivision (b) of section 1172.75 charges prison administrators with identifying

judgments that include the enhancements declared invalid in subdivision (a). It requires

the “Secretary of the Department of Corrections and Rehabilitation [CDCR] and the

county correctional administrator of each county” to “identify those persons in their

custody currently serving a term for a judgment that includes an enhancement described

in subdivision (a)” and to provide certain information about those people “to the

sentencing court that imposed the enhancement.” (§ 1172.75, subd. (b).)

The subdivision contains no suggestion that prison administrators exclude

enhancements imposed and stayed. A drafter of subdivision (b) could not expect that

prison officials, charged with finding enhancements described in subdivision (a), would

construe “imposed” using inferences gleaned, without any express direction to do so,

from subsequent provisions of the statute, as the majority proposes. (§ 1172.75, subds.

4 (a), (b).) The natural reading of subdivision (b) applies the interpretation the Attorney

General had in Renteria, supra, 96 Cal.App.5th at p. 1282; that is, that subdivision (a)

includes all imposed prison prior enhancements.

In fact, when drafting and voting on the statute, the Legislature was aware that

CDCR had identified the individuals with enhancements imposed, at least as a group,

when subdivision (a) was in the statute but none of the resentencing provisions yet were.

CDCR informed the Assembly Public Safety Committee that it had identified 10,133

inmates. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 483 (2021-2022 Reg.

Sess.) as amended July 7, 2021, pp. 3-4.) We know, from this case and many others, that

CDCR identified defendants whose enhancements were “imposed” but also stayed, so we

have every reason to presume that CDCR was including defendants like Cline all along.

Thus, CDCR appears to have done exactly what a drafter or reader of the text would have

expected it to do.

Subdivision (b), for these reasons, supports interpreting “imposed” in subdivision

(a) to mean “imposed.” (§ 1172.75, subds. (a), (b).) A statute that excluded “imposed

and stayed” enhancements would provide clearer instructions to CDCR to exclude them.

B. Subdivision (c)

Subdivision (c) of section 1172.75 instructs trial courts on what to do with the

information from prison administrators. The court is required to “verify” that the

“current” judgment includes a sentencing enhancement described in subdivision (a).

5 (§ 1172.75, subd. (c).) This means that the court is to check to ensure that the

enhancement remains in the operative judgment.

The use of the verb “verify” suggests that the court is to confirm the judgment on

its face falls within subdivision (a), rather than exercise judicial discretion to evaluate it.

“Verifying” typically refers to confirming truth using external information, not analyzing

something afresh. (See, e.g., Intellicheck Mobilisa, Inc. v. Wizz Sys., LLC (W.D. Wash.

2016) 173 F.Supp.3d 1085, 1108 [defining “verify” as “‘to confirm the truth or

truthfulness of. . .to confirm or establish the authenticity or existence of’”].) The use of

the adjective “current” suggests that the court’s verifying task is to ensure the

enhancement imposed in the judgment identified by CDCR has not been vacated, such as

on direct appeal.

The task of verifying that the current judgment includes the enhancement suggests

that CDCR has performed a ministerial task of finding judgments with the enhancements.

It also suggests that the court’s task is to confirm that the enhancement is still in the

current judgment. This reading makes sense because, before the legislation was enacted,

CDCR told the Legislature that it had identified the inmates (10,133 of them) whose

judgments included the now-invalid enhancement. (Assem. Com. on Public Safety,

Analysis of Sen. Bill No. 483, supra, as amended July 7, 2021, pp. 3-4.) As this was no

obstacle for CDCR, it would leave the court’s task to verify that, between the time that

CDCR provides the judgments and the petitioner’s hearing, the enhancement had not

already been eliminated from the current judgment. This is an ordinary meaning of the

6 combination of “verify” and “current”: to confirm that previously provided information is

unchanged. (Cf. Welf. & Inst. Code, § 12304.41 [“verify” entity’s “current” mailing

address and update if needed]; Bus. & Prof. Code, § 7599.39 [licensee to “verify” proof

of “current” registration].)

Subdivision (c) contains no suggestion that the court is supposed to exclude

imposed enhancements for any reason not stated in subdivision (a). (§ 1172.75, subds.

(c), (a).) On the contrary, the trial court must confirm that the judgment “includes a

sentencing enhancement described in subdivision (a)” (§ 1172.75, subd. (c)), the

provision that describes prison priors “imposed” without indicating that stayed

enhancements are excluded.

Once a trial court determines the current judgment “includes an enhancement”

described in subdivision (a), “the court shall recall the sentence and resentence the

defendant.” (§ 1172.75, subd. (c).) At that stage, “section 1172.75 requires a full

resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.”

(People v. Monroe (2022) 85 Cal.App.5th 393, 402.) The statute thereby provides the

entire process resulting in a mandatory resentencing without suggesting that the term

“imposed” excludes “imposed and stayed.”

C. Subdivision (d)(1)

In subdivision (d)(1), the Legislature required that the resentencing must result in

a “lesser” sentence than the one originally imposed. (§ 1172.75, subd. (d)(1).) That

description of a “lesser” sentence includes one where nothing changed from the original

7 sentence but the elimination of an enhancement with a stayed prison term. Such a

sentence is neither a “greater” sentence nor the “same” sentence earlier imposed. Rather,

a sentence with an invalid enhancement eliminated is a lesser one than a sentence with

one included. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1156 [a sentence is a

“lesser sentence” when there are fewer components to it, even if no “on the ground

change”].)

The Legislature did not require that the court impose a “shorter” prison term than

before. This choice of “lesser” rather than “shorter” appears deliberate. Subdivision

(d)(1) also states that the court may not impose a “longer” sentence than the original one.

(§ 1172.75, subd. (d)(1).) Though it forbade a longer sentence, the Legislature did not

require a shorter one.

When the Assembly Committee on Public Safety added the “lesser” language to

the statute in a July 15, 2021, amendment, it had a reason to use that word. It had been

informed that thousands of sentences would be rendered “lesser” but not necessarily

“shorter” with the elimination of an invalid enhancement. CDCR had reported that 3,061

inmates with a prison prior were serving an indeterminate sentence (that is, a life

sentence). (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 483, supra, as

amended July 7, 2021, p. 4.) The report explained that for these persons to be released

they “would still be required to have a parole suitability hearing before the Board of

Parole Hearings.” (Ibid.) When CDCR provided the report, the “imposed” language in

subdivision (a) had been in the draft statute for several months, since March 3, 2021.

8 CDCR had no different standard for what enhancements the statute covered, other than

that they were “imposed.”

The Legislature thereby learned that when courts eliminate prison priors from the

judgment of any of over 3,000 defendants with indeterminate sentences, that action

would not make a shorter sentence. Even if a component of such a defendant’s

determinate sentence (or minimum custody time on their life sentence) is reduced, the

defendant stays in custody for life unless they—separately—qualify for release on parole.

(See, e.g., People v. Dowdy (2024) 107 Cal.App.5th 1, 5-6 [prison priors imposed run

consecutive to 25-years-to-life sentence].) Such a defendant might, on a section 1172.75

resentencing, receive a shorter sentence for reasons other than the elimination of the

enhancement.

Told that CDCR had identified 3,061 inmates with indeterminate sentences to

whom section 1172.75 would apply, the Legislature did not narrow the statute to exclude

them. These inmates qualify to have their enhancements eliminated and to be

resentenced. The Legislature chose to eliminate these legally invalid enhancements even

if doing so would not mean a shorter sentence for the inmate. The use of “lesser” in the

statute accords with that. The Legislature’s treatment of indeterminate sentences and its

use of the term “lesser” (rather than “shorter”) support concluding that section 1172.75

applies to “imposed and stayed” enhancements, a similar situation where the elimination

of the enhancement would not itself mean a shorter sentence.

9 The majority (maj. opn., ante, at pp. 7-9) follows People v. Rhodius (2023) 97

Cal.App.5th 38, 44, review granted, Feb. 21, 2024, S283169, and interprets the

requirement that the resentencing must “result in a lesser sentence” as meaning that an

enhancement is imposed under subdivision (a) only if “the repealed enhancement

increased the length of the sentence.” Otherwise, Rhodius concluded, a resentencing

court would have to “arbitrarily lower” the sentence, because the elimination of the

enhancement would not itself do that. (Ibid.)

This view would be better supported had the Legislature required a “shorter”

sentence. The Legislature did not do so, even though it prohibited “longer” sentences.

The view also does not square with the Legislature’s consideration of enhancements to

indeterminate sentences that do not “increase[] the length of the sentence” (Rhodius,

supra, 97 Cal.App.5th at p. 44) because those defendants are subject to a life sentence no

matter whether the enhancement was imposed and no matter whether it is eliminated.

The Rhodius view seems to require that defendants with indeterminate sentences not

receive section 1172.75 relief even if their enhancement was imposed and executed,

because such an enhancement does not increase their sentence length. But the

Legislature was told that CDCR had identified these defendants for relief, and the

legislative history suggests no intent to exclude them. If anything, the distinctive term

“lesser” contradicts the majority’s view: it helps show the statute includes defendants

with indeterminate sentences and defendants with stayed enhancements. For each,

simply eliminating the enhancement is a lesser sentence but not a shorter one.

10 Subdivision (f) of section 1172.75 refutes the majority’s view even more directly.

Beginning January 1, 2025, that subdivision renders ineligible for recall and resentencing

sexually violent offenders who have a sentence of death or of a life term without the

possibility of parole (LWOP). That exclusion reflects the assumption that section

1172.75 resentencing applies to defendants with death or LWOP sentences, so long as the

crime is not a sexually violent offense. In such cases, any imprisonment on the prison

prior does not increase the length of the sentence. With or without the enhancement,

these defendants cannot be released at all. The enhancements nevertheless qualify a

defendant for recall and resentencing. This demonstrates that the statute contemplates

that enhancements are “imposed” under subdivision (a) when they are included in the

judgment, not only where “the repealed enhancement increased the length of the

sentence.” (Rhodius, supra, 97 Cal.App.5th at p. 44.)

D. Subdivisions (d)(2), (d)(3), and (d)(4)

The majority correctly recognizes that a preeminent goal of the Legislature in

enacting section 1172.75 was to eliminate prison prior enhancements such that inmates

do not serve custody time on them. (Maj. opn, ante, at p. 11.) That statutory purpose is

satisfied because any interpretation of “imposed” includes all defendants with “imposed

and executed” enhancements.

But the Legislature did not simply eliminate the enhancements by ordering them

struck. Rather, it required the court to “recall the sentence and resentence the defendant.”

(§ 1172.75, subd. (c).) The Legislature ordered the resentencing of inmates based on

11 current sentencing rules and “any other changes in law that reduce sentences or provide

for judicial discretion.” (§ 1172.75, subd. (d)(2).) The Legislature expressly stated its

purpose: “to eliminate disparity of sentences and to promote uniformity of sentencing.”

(Ibid.) In recent years, there have been an array of ameliorative sentencing measures, and

the inmates receive the benefits of any of them at the resentencing. (See People v.

Christianson (2023) 97 Cal.App.5th 300, 314 [section 1172.75 “involves statutory

amendments expressly aimed at reducing sentences” and requires a full resentencing “in

light of all associated sentencing reform”), review granted Feb. 21, 2024, S283189.)

To that end, the Legislature specified that a defendant could obtain a lesser

sentence based on “postconviction factors.” (§ 1172.75, subd. (d)(3).) At the

resentencing, the inmate can benefit from their “disciplinary record and record of

rehabilitation”; evidence that “age, time served, and diminished physical condition, if

any, have reduced [their] risk for future violence”; and evidence that “circumstances have

changed since the original sentencing so that continued incarceration is no longer in the

interest of justice.” (§ 1172.75, subd. (d)(3).) For the resentencing, the court placed a

presumption, like that it placed in section 1170, subdivision (b)(2), that the sentence will

not exceed the middle term absent facts in aggravation that the inmate has admitted or

that have been proved in court beyond a reasonable doubt. (§ 1172.75, subd. (d)(4).)

These resentencing goals apply just as well to those with stayed punishment on

their enhancements as they apply to those with executed punishment. In fact, if we

12 exclude those inmates with stayed punishment from section 1172.75 relief, we create

more sentencing disparities, not fewer.2

Here, for instance, the trial court imposed and stayed punishment on all seven of

Cline’s prison prior enhancements. Under the majority’s view, Cline is denied a

resentencing solely because of the decision to stay that punishment. If the trial court had

executed punishment on even one of those enhancements, Cline’s sentence would be

recalled, and, on resentencing, not only would that punishment be eliminated, but he

would have a chance to argue for a lesser sentence. For example, he could seek a lesser

firearm enhancement of three or four years under section 12022.5, instead of the ten-year

enhancement he received earlier. He could rely on his record while incarcerated, new

material since his last sentencing. Whatever his chance of success in such an argument,

there is no reason why his ability to make it should depend on whether the court stayed

punishment on his prison priors. An inmate much like Cline but who the sentencing

judge thought deserved more punishment—and thus refused to stay a prison prior—

would today have a chance to seek the more lenient sentence simply because their prison

prior enhancement was executed. This is not the uniformity in sentencing that section

2 Section 1172.75, however interpreted, leaves disparities, as inmates who received no prison prior enhancement at all do not receive a resentencing. Yet the Legislature wished to eliminate disparities between the sentences of those sentenced under old laws and those sentenced today. Including more (rather than fewer) inmates for resentencing serves that goal. And the majority’s interpretation creates additional disparities among the class of inmates with a prison prior, sorting them for the resentencing benefit based on whether their punishment was executed.

13 1172.75, subdivision (d)(2) seeks. The majority’s interpretation of section 1172.75

contradicts the statute’s express purposes.

Every inmate with an “imposed and executed” prison prior receives relief under

section 1172.75, accomplishing the legislative policy of ensuring inmates do not serve

time on prison priors. But the legislative policy of allowing a resentencing in section

1172.75, subdivisions (d)(2), (d)(3), and (d)(4) applies equally to those with “imposed

and executed” and “imposed and stayed” prison priors. We undermine the uniform

sentencing goal of the statute if we deny resentencing to those with punishment stayed on

their enhancement.3

II

As discussed in Section I, the word “imposed” in subdivision (a), read either alone

or with the whole statute, is best interpreted as including both “imposed and executed”

and “imposed and stayed” enhancements. The majority relies on a single statutory

term—“lesser” sentence—that does not advance its argument that “imposed” is shorthand

for “imposed and executed.” Rather, the text conveys that all defendants with prison

priors imposed in their judgment are to have their sentence recalled and be resentenced.

Given the statutory text, we need not further parse section 1172.75’s legislative

history. Even so, because the majority asserts that the legislative intent conflicts with

3 The Legislature recently again endorsed resentencings in this context. Effective at the beginning of 2025, a new section 1171 states that a trial court “has jurisdiction to modify every aspect of the defendant’s sentence” in a postconviction petition such as this one, so long as there is no more specific rule prohibiting doing so. (§ 1171, subd. (c) & (c)(2); see Assembly Bill No. 2483 (Stats. 2024, ch. 964, § 2, eff. Jan. 1, 2025).)

14 interpreting section 1172.75 to include “imposed and stayed” enhancements (maj. opn.,

ante, at p. 10), I will address the legislative history.

Effective January 1, 2020, the Legislature established the Committee on Revision

of the Penal Code to study that Code and propose reforms. (Government Code §§ 8280,

8290.5.) Its first set of recommendations, published February 9, 2021, contained two

recommendations that became part of section 1172.75.4 The first recommendation was to

strike the prison prior enhancements retroactively. The second was to establish a judicial

process for “second look” resentencing, the Model Penal Code’s term for revisiting

inmates’ entire sentences (Committee on Revision of Penal Code, Annual Report and

Recommendations, supra, at p. 68). Each proposal became a different bill.

First, on March 3, 2021, Senate Bill No. 483 was introduced to implement the

recommendation about prison prior enhancements.5 The first version of Senate Bill No.

483 strictly followed the committee recommendation and had no resentencing provision.

Rather, the statute’s subdivision (c) directed courts to “administratively amend the

abstract of judgment to delete that enhancement.” The proposal had no subdivision (d),

as would the final bill. There was no “lesser sentence” requirement, and courts had no

authorization to consider other changes in law. The initial bill analysis quotes the bill’s

author as stating that Senate Bill No. 483 is eliminating the enhancements “[a]s

4 Committee on Revision of Penal Code, Annual Report and Recommendations, (Feb. 9, 2021) , pages 48-51, 64-68.

5 The substance of Senate Bill No. 483 was offered as an amendment replacing unrelated text of an existing bill. The same occurred with Assembly Bill No. 1540 discussed next.

15 recommended by the state’s Committee on Revision of the Penal Code.” (Sen. Com. on

Public Safety, Analysis of Sen. Bill No. 483, supra, hearing Apr. 27, 2021 for version

Mar. 3, 2021, p. 2.)

Meanwhile, on March 11, 2021, Assembly Bill No. 1540 (Assem. Bill No. 1540)

was introduced in the Assembly Committee on Public Safety to implement the “second

look” recommendation for defendants who law enforcement suggested for recall and

resentencing. The introduced version of Assem. Bill No. 1540 contained resentencing

provisions like those that the same committee would, four months later, import into

Senate Bill No. 483. In its proposed section 1170.03 (later adopted and then renumbered

as section 1172.1), Assem. Bill No. 1540 proposed resentencing to “eliminate disparity of

sentences and to promote uniformity of resentencing,” and it contained a description of

the post-conviction factors that a court may consider. (Proposed § 1170.03, subds. (a)(2),

(a)(4).) The committee’s analysis of the bill discussed the Committee on Revision of the

Penal Code’s “second look” resentencing recommendations and stated that “[t]his bill is a

response to the Committee’s recommendations on resentencing.” (Assem. Com. on

Public Safety, Analysis of Assem. Bill No. 1540, as amended April 22, 2021, pp. 5-6.)

Senate Bill No. 483—the prison prior bill—passed the Senate and proceeded to

the Assembly Committee on Public Safety. There, an important change occurred. That

committee amended the bill to eliminate the “administrative” striking of enhancements

and replaced it with the recall and resentencing provisions now found in section 1172.75,

subdivision (d). (See Assem. Com. on Public Safety, Analysis of Assem. Bill No. 483, as

16 amended July 7, 2021, pp. 1-2 [explaining resentencing provisions].) The committee

adapted those provisions from Assem. Bill No. 1540, the “second look” resentencing bill.

A staff member from the Committee on Revision of the Penal Code testified before the

Assembly Committee on Public Safety in support of the amended bill on July 13, 2021,

stating that “as amended by the committee, it will ensure that fair sentencing hearings are

held when necessary” and “it will promote justice, rationality, uniformity in sentencing.”6

At that point, Senate Bill No. 483 no longer was about only eliminating enhancements; it

was also about the resentencing goals in the “second look” resentencing recommendation.

The Legislature enacted both Senate Bill No. 483 and Assem. Bill No. 1540,

providing similar resentencing provisions in each. Both current section 1172.75,

subdivision (d)(2) and section 1172.1, subdivision (a)(2) instruct courts to apply “changes

in law that reduce sentences or provide for judicial discretion so as to eliminate disparity

of sentences and to promote uniformity of sentencing.” Both current section 1172.75,

subdivision (d)(3) and section 1172.1, subdivision (a)(5) allow courts to consider

“postconviction factors, including, but not limited to, the disciplinary record and record

of rehabilitation of the defendant while incarcerated, evidence that reflects whether age,

time served, and diminished physical condition, if any, have reduced the defendant’s risk

for future violence, and evidence that reflects that circumstances have changed since the

original sentencing so that continued incarceration is no longer in the interest of justice.”

6 https://www.assembly.ca.gov/media/assembly-public-safety-committee- 20210713 [testimony of Natasha Minsker beginning at approximately 2:19:00].)

17 This legislative history, then, confirms that section 1172.75 reflects not just the

purpose of eliminating one-year prison prior enhancements (one proposal of the

Committee on Revision of the Penal Code) but also the purpose of revisiting the

sentences of persons sentenced under other laws that have been changed, or where post-

conviction factors might make a difference (the separate “second look” proposal).

Rhodius, however, relied on only a single piece of legislative history: a March 3,

2021, report from the Senate Public Works Committee, discussing the initial version of

Senate Bill No. 483. (See Rhodius, supra, 97 Cal.App.5th at pp. 46-48.) At that point,

the draft statute contained no resentencing provisions and required courts simply to delete

prison prior enhancements. That legislative history does not relate to the Assembly’s

July 2021 decision to amend the statute to require recall and resentencing and to

authorize courts to consider other changes in law and post-conviction conduct by creating

subdivision (d). Rhodius, and today’s opinion, address only legislative history that pre-

dates the existence of that subdivision.

This history of section 1172.75 provides another reason why “imposed” means

what the text states it does: a prison prior included in the judgment. By providing for

recall and resentencing while eschewing the proposal to simply strike the enhancements,

the Legislature’s intent was—as in section 1172.1—to allow deserving defendants to

benefit from resentencing, and there is no reason why those with “imposed and stayed”

enhancements are less likely to benefit than those with “imposed and executed” ones.

18 III

One final item: the majority directs the trial court to strike or vacate the prison

prior enhancements. (Maj. opn., ante, at p. 11.) There is no authority for that.

These enhancements were not retroactively invalidated until the Legislature

declared them invalid in section 1172.75, subdivision (a). The only authority for doing

so is section 1172.75. If they do not fall under section 1172.75, then there is no authority

for addressing them. If they fall under section 1172.75, then there also is no authority to

“strike” them, as the statute requires that the court “shall recall the sentence and

resentence the defendant,” not strike the enhancements. (§ 1172.75, subd. (c).)

An “imposed and stayed” enhancement is a part of a sentence, and it can be

executed by the court lifting the stay when another enhancement is reversed or vacated.

(See People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130 [various firearms

enhancements are to be “imposed and stayed” so if the executed one is found invalid on

appeal, the others are “readily available”]; People v. Alford (2010) 180 Cal.App.4th

1463, 1469 [“if the unstayed sentence is reversed, a valid sentence remains extant”];

People v. Begnaud (1991) 235 Cal.App.3d 1548, 1553 [“When the principal term was

reversed, the stay was removed and the full middle term became the sentence”].)

Practically, there is no chance that Cline’s stays would ever be removed. But the

majority’s approach is wrong in principle, as it orders a court to strike a stayed sentence

absent a law providing authority to do so. (See People v. Karaman (1992) 4 Cal.4th 335,

19 344, fn. 9 [judgment is orally pronounced by the court at sentencing].)7 While it makes

eminent sense to eliminate Cline’s prison prior enhancements, the statutory way to do so

is what the Legislature authorized in section 1172.75, subdivision (c): recalling his

sentence and resentencing him.

If Cline had an executed prison prior enhancement in his judgment along with his

life sentence, the majority presumably would follow the statutory procedure and order a

recall and resentencing. The Legislature enacted that procedure in section 1172.75,

rejecting the initially proposed procedure of striking enhancements that the majority

applies to Cline’s case. I am dissenting because I would follow the terms of the statute.

Doing so is also more consistent with the statutory purpose of seeking uniform

sentencing under current laws. Under section 1172.75, all those with a prison prior

enhancement included in their judgment qualify for recall and resentencing.

RAPHAEL J.

7 The trial court likewise has no authority to strike enhancements or their punishment to fashion a sentence that differs from that imposed at the sentencing hearing. The court originally imposed-and-stayed seven prison priors. At the 2019 resentencing, the court struck a different enhancement per the parties’ stipulation and stated “no other changes will be made with regard to the sentence previously imposed.” The 2019 abstract of judgment included the seven prison prior enhancements with stayed punishment. That sentence can be changed through the section 1172.75 resentencing procedure, but there is no general authority for a court to simply decide to strike part of it.