People v. Fernandez CA4/2

Opinion

Filed 4/1/25 P. v. Fernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083319

v. (Super. Ct. No. SWF1807828)

JOSE FELIPE FERNANDEZ, OPINION

Defendant and Appellant.

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

Reversed and remanded with directions.

James R. Bostwick, Jr., 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, Daniel Rogers and Alana Cohen Butler,

Deputy Attorneys General, for Plaintiff and Respondent.

1 I.

INTRODUCTION

The trial court found defendant and appellant Jose Felipe Fernandez ineligible for

resentencing pursuant to Penal Code1 section 1172.75 because the sentencing

enhancement imposed for his having suffered one prior prison term (§ 667.5, subd. (b))

was imposed and stayed during his initial sentencing proceedings.

On appeal, defendant contends he is entitled to a full resentencing hearing

pursuant to section 1172.75, even though his prison prior (§ 667.5, subd. (b)) was

imposed and stayed. We agree that defendant is entitled to sentencing relief under

section 1172.75 for his prior prison term enhancement which was imposed and stayed.

We therefore reverse the order and remand for the trial court to recall defendant’s

sentence, vacate his prison prior enhancement, and resentence him under section 1172.75,

subdivision (d).

II.

PROCEDURAL BACKGROUND2

In June 2019, defendant pled guilty to possession of a weapon, to wit, a slingshot,

while incarcerated (§ 4502, subd. (a)). In addition, defendant admitted that he had

suffered a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and a

prior prison term (§ 667.5, subd. (b)). After the trial court made an error in its initial

1 All future statutory references are to the Penal Code.

2 The underlying factual background is not relevant to the issues raised on appeal. We therefore dispense with a statement of facts.

2 imposition of sentence, the court ultimately sentenced defendant to a term of six years in

prison (three years for the offense, doubled to six years due to the prior strike), which

would run concurrently with another criminal matter. The court stayed the punishment

on the prison prior enhancement.

The California Department of Corrections and Rehabilitation (CDCR) later

presumably placed defendant on a resentencing list as being eligible for relief under

section 1172.75, and on August 28, 2023, defendant’s case was placed on the court’s

calendar for a recall and resentencing hearing pursuant to section 1172.75.

On December 21, 2023, the trial court held a hearing pursuant to section 1172.7,

subdivision (a), and 1172.75, subdivision (a). Defendant was not present but represented

by counsel. No court reporter was present either. The court’s minute order of the hearing

states the court had read People v. Rhodius (2023) 97 Cal.App.5th 38, review granted

February 21, 2024, S283169 (Rhodius), People v. Renteria (2023) 96 Cal.App.5th 1276

(Renteria), People v. Christianson (2023) 97 Cal.App.5th 300, review granted,

February 21, 2024, S283189 (Christianson), and People v. Saldana (2023) 97

Cal.App.5th 1270 (Saldana), review granted March 12, 2024, S283547, and found

defendant was not eligible for resentencing under section 1172.75, subdivision (d), and

denied defendant’s motion for resentencing. After denying relief, the court ordered the

stayed prior stricken from the judgment and ordered the clerk to issue an amended

abstract of judgment.3 Defendant timely appealed.

3 The prior prison term no longer appears on the amended abstract of judgment.

3 III.

DISCUSSION

Defendant argues he is entitled to a full resentencing hearing pursuant to

section 1172.75 regardless of whether the prior prison term enhancement was imposed

and stayed or imposed and executed.4 The People respond defendant is not entitled to a

full resentencing hearing because section 1172.75 does not apply to an imposed and

stayed section 667.5, subdivision (b) prior prison enhancement, and urge this court to

follow the reasoning of our previous decision in Rhodius and affirm the order denying

resentencing under section 1172.75.

Before January 2020, section 667.5, subdivision (b), permitted enhancements for

any prior prison term for a felony. (Stats. 2018, ch. 423, § 65.) Effective January 1,

2020, the Legislature amended subdivision (b), to limit prior prison term enhancements to

sexually violent offenses. (Stats. 2019, ch. 590, § 1.) The Legislature made this change

retroactive by adding section 1171.1 (Stats. 2021, ch. 728, § 3), which was later

renumbered to section 1172.75 without substantive change. (Stats. 2022, ch. 58, § 12.)

Under section 1172.75, “[a]ny sentence enhancement that was imposed prior to

January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5,” except for enhancements

for certain sexually violent offenses, “is legally invalid.” (§ 1172.75, subd. (a).)

4 The question of whether section 1172.75 applies to prior prison terms which were imposed and stayed is currently pending before our Supreme Court. (See Rhodius, supra, 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169; Saldana, supra, 97 Cal.App.5th 1270, review granted Mar. 12, 2024, S283547; Christianson, supra, 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189.)

4 Section 1172.75 also provides that, if a prior prison term enhancement becomes invalid

under the section, a trial court “shall recall the sentence and resentence the defendant”

(§ 1172.75, subd. (c)), and, in doing so, “shall apply . . . any other changes in law that

reduce sentences or provide for judicial discretion so as to eliminate disparity of

sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).)

In Rhodius, supra, 97 Cal.App.5th 38, this court held that the section 1172.75

resentencing provision does not apply when the trial court imposes and stays a prison

prior enhancement. Defendant urges this court to reject Rhodius, and follow

Christianson and Saldana, which concluded the converse. He argues that subsequent

decisions by other appellate courts hold, to the contrary, that section 1172.75, as amended

by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590) and Senate Bill

No. 483 (Reg. Sess. 2021-2022) (Stats. 2021, ch. 728), broadly applies to enhancements

imposed and stayed, such as in the instant case. The other appellate courts focus

primarily on the meaning of the term “imposed,” within the meaning of section 1172.75,

subdivision (a). (See Renteria, supra, 96 Cal.App.5th at p. 1282 [the word “‘impose’”

applies to enhancements that are “‘“imposed and then executed,”’” as well as those that

are “‘“imposed and then stayed”’”]; Christianson, supra, 97 Cal.App.5th at p. 305;

Saldana, supra, 97 Cal.App.5th at p. 1276; People v. Mayberry (2024) 102 Cal.App.5th

665 (Mayberry).)

By granting review of Rhodius, supra, 97 Cal.App.5th 38, the Supreme Court has

agreed to resolve the “imposition” issue. In Rhodius, our court construed the term

5 “imposed,” within the meaning of section 1172.75, subdivision (a), as being limited to a

sentence being “imposed and executed.” We so limited the meaning of “imposed” in

order to make sense of the requirement in section 1172.75, subdivision (d)(1), that

resentencing must result in “a lesser sentence than the one originally imposed as a result

of the elimination of the repealed enhancement.” (Rhodius, supra, at pp. 42-45.) We

reasoned that “[t]he only way for the repealed enhancement to have increased the length

of a sentence is for the enhancement to have been imposed and executed.” (Rhodius,

supra, at p. 44.) Therefore, if section 1172.75 applied to stayed prison prior

enhancements, then a resentencing court faced with such an enhancement would be

forced to “arbitrarily lower” the defendant’s sentence to comply with the “lesser

sentence” requirement. (Rhodius, supra, at p. 44.) To avoid that outcome, we held in

Rhodius that section 1172.75 must be construed to apply only to prison prior

enhancements that were imposed and executed, and not to stayed prison prior

enhancements. (Rhodius, supra, at p. 44.)

All other appellate decisions that have considered this issue were decided after

Rhodius, with the exception of Renteria, supra, 96 Cal.App.5th 1276. So far, all of the

published decisions, other than Rhodius, have concluded that section 1172.75 applies

regardless of whether the imposed prison prior enhancement was executed or stayed.

(Renteria, supra, 96 Cal.App.5th 1276; Christianson, supra, 97 Cal.App.5th 300;

Saldana, supra, 97 Cal.App.5th 1270; Mayberry, supra, 102 Cal.App.5th 665.)

Christianson, Saldana, and Mayberry reasoned that Rhodius’s refusal to apply

6 section 1172.75 to stayed prison prior enhancements was unfounded, because striking a

stayed enhancement results in a “lesser” sentence within the meaning of section 1172.75,

subdivision (d)(1).

The court in Christianson explained that a stayed enhancement carries “the

potential for an increased sentence,” because “the trial court retains the ability to lift the

stay and impose the term under certain circumstance[s], such as if an alternately imposed

term is invalidated.” (Christianson, supra, 97 Cal.App.5th at p. 312.) Striking a stayed

enhancement reduces the defendant’s sentence because it eliminates the risk the

sentencing court will execute the enhancement in the future. (Ibid.; see Saldana, supra,

97 Cal.App.5th at p. 1277; Mayberry, supra, 102 Cal.App.5th at p. 674 [“Imposed-but-

stayed prison prior enhancements carry the possibility of execution,” and striking them

“eliminates their impact”].) Resentencing courts thus would not be required to arbitrarily

lower a sentence that included a stayed prison prior enhancement, because striking the

enhancement is sufficient to satisfy the “lesser sentence” mandate of section 1172.75,

subdivision (d)(1). (Christianson, supra, at p. 312; Saldana, supra, at p. 1277; Mayberry,

supra, at p. 674.)

The term for a stayed enhancement does not become permanent until “the

defendant finishes serving the part of the sentence that has not been stayed.” (Cal. Rules

of Court, rule 4.447(a)(2).) Furthermore, a direct appeal is not the only circumstance in

which an alternately imposed term can be invalidated. As occurred with section 1172.75,

the Legislature sometimes enacts retroactive changes to sentencing laws. (See Saldana,

7 supra, 97 Cal.App.5th at p. 1278, [“a stayed term or enhancement . . . is part of the

sentence and remains available if its execution becomes necessary and proper for any

legally sanctioned reason”].) Because defendant is still serving the sentence imposed for

his conviction, his prison prior enhancement still “carr[ies] the possibility of execution.”

(Mayberry, supra, 102 Cal.App.5th at p. 674.)

Pending resolution and guidance by our Supreme Court of the split among the

appellate courts on this issue, we conclude that the other appellate courts’ compelling

reasoning raised after Rhodius was decided, persuasively supports applying

section 1172.75 to all imposed prison prior enhancements, regardless of whether the

enhancements were stayed or executed. We also agree that striking a stayed enhancement

results in a lesser sentence. (Christianson, supra, 97 Cal.App.5th at pp. 312, 315;

Saldana, supra, 97 Cal.App.5th at p. 1277; Mayberry, supra, 102 Cal.App.5th at pp. 674-

675.)

We recognize that this decision is inconsistent with this court’s previous decision

in Rhodius. Nevertheless, for the reasons stated above, we conclude contrary to Rhodius

that section 1172.75 applies to defendant’s stayed prison prior enhancement. As a result,

he is entitled to reversal of the trial court order denying sentencing relief and remand for

the trial court to recall his sentence, to vacate his prison prior enhancement, and

resentence him under section 1172.75, subdivision (d). (See People v. Monroe (2022) 85

Cal.App.5th 393, 402 [“[S]ection 1172.75 requires a full resentencing, not merely that the

trial court strike the newly ‘invalid’ enhancements.”].)

8 We further note that a criminal defendant’s right to be personally present at trial

and by extension all critical stages of the criminal prosecution, including sentencing and

resentencing, is guaranteed in the federal Constitution by the confrontation clause of the

Sixth Amendment and the due process clause of the Fourteenth Amendment. (People v.

Velasco (2023) 97 Cal.App.5th 663, 673 (Velasco).) It is also required by section 15 of

article I of the California Constitution and by sections 977 and 1043. (Velasco, at p. 673.)

Section 977, subdivision (b)(1), requires a defendant “be physically present at the

arraignment, at the time of plea, during the preliminary hearing, during those portions of

the trial when evidence is taken before the trier of fact, and at the time of the imposition

of sentence. The accused shall be physically or remotely present at all other proceedings

unless they waive their right to be physically or remotely present, with leave of court and

with approval by defendant’s counsel.” “The waiver of a defendant’s right to be

physically or remotely present may be in writing and filed with the court or, with the

court’s consent, may be entered personally by the defendant or by the defendant’s counsel

of record.” (§ 977, subd. (b)(2).)

“A waiver of the defendant’s physical or remote presence may be entered by

counsel, after counsel has stated on the record that the defendant has been advised of the

right to be physically or remotely present for the hearing at issue, has waived that right,

and agrees that notice to the attorney that the defendant’s physical or remote presence in

court at a future date and time is required is notice to the defendant of that requirement.”

(§ 977, subd. (b)(2)(B).)

9 “As a matter of both federal and state constitutional law, . . . a defendant may

validly waive his or her right to be present during a critical stage of the trial, provided the

waiver is knowing, intelligent, and voluntary.” (People v. Cunningham (2015) 61 Cal.4th

609, 633 (Cunningham).) “‘[T]he court can rely upon the representations of defense

counsel that the accused was knowingly absent from the proceedings.’” (People v.

Fedalizo (2016) 246 Cal.App.4th 98, 110.) In this case, defendant’s counsel did not

indicate that defendant waived his presence or authorized the waiver, and there was no

evidence on the record that otherwise showed that the waiver, through counsel, was

“knowing.” (Cunningham, supra, at p. 633.)

“When errors involving a defendant’s federal constitutional rights are implicated,

the standard set forth in Chapman v. California (1967) 386 U.S. 18 . . . applies and the

error is prejudicial and requires reversal unless we can conclude beyond a reasonable

doubt that it did not affect the outcome of the proceeding.” (Velasco, supra, 97

Cal.App.5th at p. 674.) We review de novo whether trial courts have complied with

section 1172.75’s resentencing requirements. (People v. Carter (2023) 97 Cal.App.5th

960, 967 (Carter).)

Here, the trial court struck defendant’s prior prison enhancement but did not

conduct a full resentencing hearing or obtain a valid waiver of defendant’s absence from

the hearing. “[A] defendant eligible for removal of a prison prior under section 1172.75

must be provided an opportunity for full resentencing to argue for further relief under any

other ameliorative changes in law that reduce sentences, regardless of whether their

10 sentence resulted from a plea agreement.” (Carter, supra, 97 Cal.App.5th at p. 972.)

Furthermore, had defendant been present, “he may have ‘offered mitigating factors

that arose after his original sentencing; he may have expressed remorse; [or] he may have

made a plea for leniency.’” (Velasco, supra, 97 Cal.App.5th at p. 674.) As such, this case

must be remanded to conduct a full resentencing hearing with defendant present or with

his valid waiver.

We reverse and remand for a full resentencing hearing pursuant to section 1172.75

with defendant present or with his valid waiver. Upon resentencing, the trial court should

calculate defendant’s custody credits, prepare an amended abstract of judgment, and

forward a copy of the amended abstract of judgment to the CDCR. (People v. Buckhalter

(2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must

credit him with all actual days he spent in custody (whether in jail or prison) up to that

time, including his time in custody after the original sentencing]; People v. Buycks (2018)

5 Cal.5th 857, 893 [“[O]n remand for resentencing ‘a full resentencing as to all counts is

appropriate, so the trial court can exercise its sentencing discretion in light of the changed

circumstances.’”].

11 IV.

DISPOSITION

The trial court’s December 2023 order finding defendant ineligible for sentencing

relief is reversed. The matter is remanded to the trial court for a full resentencing hearing

under section 1172.75, subdivision (d), in defendant’s presence or with defendant’s

waiver. Following resentencing, the trial court should prepare an amended abstract of

judgment and forward a copy to the CDCR.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. I concur:

RAPHAEL J.

12 [People v Fernandez, E083319]

McKINSTER, Acting P. J., dissenting:

I continue to adhere to our decision in People v. Rhodius (2023) 97 Cal.App.5th 38,

review granted February 21, 2024, S283169. Christianson’s reasoning is, at least in some

degree flawed; Christianson erroneously asserts that a court could impose punishment on a

prior prison term enhancement, like the one here, at some point in the future. (People v.

Christianson (2023) 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189.)

Contrary to Christianson’s implication, punishment on the enhancement here could

never subsequently be imposed because the law has invalidated such enhancements unless

they are for qualifying sexually violent offenses, which is inapplicable here. (People v.

Mayberry (2024) 102 Cal.App.5th 665, 676, review granted Aug. 14, 2024,

S285853.) Thus, defendant was not entitled to a full resentencing hearing because he was

not serving time for a Penal Code section 667.5, subdivision (b) enhancement, time on the

enhancement could now never be imposed, and striking the enhancement would not result in

a lesser sentence than the one originally imposed.

To interpret the law to permit a full resentencing hearing to 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. Therefore, I would affirm the order denying defendant a full resentencing hearing.

McKINSTER Acting P. J.