Filed 1/10/25 P. v. Jimenez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082632
v. (Super.Ct.No. INF1501116)
IVAN RAUL JIMENEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Thien Huong Tran, 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, Kathryn Kirschbaum and Collette C.
Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Ivan Raul Jimenez challenges the trial court’s order
finding he was not eligible for recall and resentencing relief under Penal Code
section 1172.75.1 The court entered its order after verifying a one-year enhanced term for
a prison prior (§ 667.5, subd. (b)) remained stayed and had not been executed in more
than five years since defendant’s original sentencing. We affirm the court’s ruling.
FACTUAL AND PROCEDURAL HISTORY
In December 2016 a jury found defendant guilty of vehicle theft (Veh. Code,
§ 10851, subd. (a)), two counts of using another person’s identifying information (Pen.
Code, § 530.5, subd. (a)), fraudulent use of access cards or account information (Pen.
Code, § 484g, subd. (a)), second degree burglary (Pen. Code, § 459), and resisting a
peace officer (Pen. Code, § 148, subd. (a)(1)). The jury was unable to reach a verdict on
a first degree burglary count (Pen. Code, § 459) and one for receiving a stolen vehicle
(Pen. Code, § 496d), but defendant subsequently pleaded guilty to the burglary count. He
also admitted to a prior strike, a prior serious felony, and a prior prison term allegations.
At defendant’s sentencing hearing in June 2018 the court imposed a prison term of
22 years eight months. In imposing an enhanced term for the prison prior, the court
specified: “[I]t will be one year, but that will be stayed.”
Almost five and one-half years later, in November 2023 the court held a hearing to
consider recall of defendant’s sentence and resentencing under section 1172.75. The
court concluded defendant was ineligible for resentencing under the statute. The court
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 explained: “Since the prison prior was stayed, it has no effect on the sentence he’s
serving, therefore, [he has] no right to resentencing.”
DISCUSSION
Defendant contends the trial court erred in concluding he was ineligible for
resentencing under section 1172.75. We conclude the court did not err.
Defendant’s appeal revisits the question this court and others have considered
regarding whether a prior prison enhancement currently subject to a stay falls within
section 1172.75’s recall and resentencing procedure. The question turns on the statute’s
use of the word “imposed.” (§ 1172.75, subd. (a); see, e.g., People v. Christianson (2023)
97 Cal.App.5th 300, 311 (Christianson) [“The only question is whether the enhancements
were ‘imposed’ as the word is used in section 1172.75, subdivision (a)”], rev. granted
Feb. 21, 2024, S283189.)
In challenging the trial court’s ruling, defendant relies on cases decided since this
court held that a defendant whose sentence includes a prior prison enhancement imposed
under former section 667.5, subdivision (b), but currently stayed, is outside the
resentencing relief the Legislature intended in enacting section 1172.75. (See People v.
Rhodius (2023) 97 Cal.App.5th 38 (Rhodius), rev. granted Feb. 21, 2024, S283169.) As
we explain, we see no reason to depart from Rhodius pending the Supreme Court
resolving the issue.
As in Rhodius, our review begins with the governing law.
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
3 any enhancement imposed for a prior conviction for a sexually violent offense . . . is
legally invalid.” (Italics added.) The statute provides a conditional trigger for recall and
resentencing, as follows: “If the court determines that the current judgment includes an
enhancement described in subdivision (a),” namely, one “imposed” before 2020, but not
for a sexually violent offense, “the court shall recall the sentence and resentence the
defendant.” (§ 1172.75, subd. (c), italics added.) The statutory scheme states the
Legislature intended that resentencing undertaken “pursuant to this section shall result in
a lesser sentence than the one originally imposed as a result of the elimination of the
repealed enhancement, unless the court finds by clear and convincing evidence that
imposing a lesser sentence would endanger public safety.” (§ 1172.75, subd. (d)(1),
italics added.)
We interpret statutes de novo. The goal is to “ ‘ascertain the Legislature’s intent in
order to effectuate the law’s purpose.’ ” (People v. Gonzalez (2008) 43 Cal.4th 1118,
1125 (Gonzalez).) “We begin with the statutory language, viewed in light of the entire
legislative scheme of which it is a part, as the language chosen is usually the surest guide
to legislative intent.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670; In re
Corrine W. (2009) 45 Cal.4th 522, 529.) We interpret terms used by the Legislature in
context, “giv[ing] them their usual and ordinary meaning.” (Gonzalez, at p. 1126.) “If
the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative
history, the statute’s purpose, and public policy.” (Ibid.)
The first appellate court to consider the meaning of “imposed” in section 1172.75
quoted our Supreme Court’s discussion of the word in Gonzalez, but only partially.
4 (People v. Renteria (2023) 96 Cal.App.5th 1276 (Renteria).) Gonzalez addressed the
Legislature’s use of “imposed” in amendments to section 12022.53 regarding imposition
of firearm enhancements. Renteria relied on Gonzalez’s observation that, by definition,
“ ‘the word “impose” applies to enhancements that are “imposed and then executed” as
well as those that are “imposed and then stayed.” ’ ” (Renteria, at p. 1282, quoting
Gonzalez, supra, 43 Cal.4th at p. 1125.) Renteria concluded that, “as a consequence” of
section 1172.75 using the word “imposed,” the statute’s recall and resentencing procedure
applies to all sentences in which a section 667.5, subdivision (b), prior prison was
imposed—regardless of whether the enhanced penalty was executed or stayed. (Renteria,
at pp. 1282-1283.)
It appears neither party in Renteria raised Gonzalez’s express caveat that, in
common practice, a usual and ordinary meaning of “imposed” is that it “often” refers to
sentences that are actually executed, not those that are stayed. (Gonzalez, supra,
43 Cal.4th at p. 1125.) Renteria did not address this distinction, nor that Gonzalez itself
exemplified a statutory use case of “impose” and “imposed” requiring execution of the
sentence, rather than imposition and a stay. (Gonzalez, at p. 1126 [“impose” and
“imposed” as used in section 12022.53, subdivision (f), meant “impose and then execute,
as opposed to impose and then stay”].) Neither party in Renteria sought review.
Next, after the Sixth District’s decision in Renteria, this court considered the issue.
We concluded that when read “as a whole” and harmonizing the statute’s several
provisions, including implementation instructions to the California Department of
Corrections and Rehabilitation (CDCR) and to sentencing courts, the Legislature
5 intended “imposed” in section 1172.75 “as meaning ‘imposed and executed.’ ” (Rhodius,
supra, 97 Cal.App.5th at p. 45.)
Subsequently, our Fourth District colleagues in Division One took up the issue in
Christianson. Acknowledging Gonzalez, Christianson recognized section 1172.75’s use
of imposed “is at least somewhat ambiguous.” (Christianson, supra, 97 Cal.App.5th at
p. 311.) To aid in discerning the term’s statutory meaning, the court looked to the steps
set out in section 1172.75 preceding recall and resentencing. (See, e.g., People v. Cota
(2023) 97 Cal.App.5th 318, 332 [recall and resentencing “process . . . triggered by”
CDCR review].)
In brief, section 1172.75 requires the CDCR first to identify all inmates “currently
serving a term for a judgment that includes an enhancement described in subdivision (a),”
after which, “[u]pon receiving th[is] information” from the CDCR, “the sentencing court
that imposed the enhancement” then “shall review the judgment and verify that the
current judgment includes a sentencing enhancement described in subdivision (a).”
(§ 1172.75, subds. (b) & (c), italics added.)
Christianson focused on the word “verify” in the foregoing language.
Specifically: “[T]he use of the word ‘verify’ suggests that the sentencing court is doing
just that, verifying that the individual the CDCR identified is in fact an individual
described by the statute, not looking to see if the inmate meets an additional requirement
(i.e., that the enhancement is imposed and not stayed).” (Christianson, supra,
97 Cal.App.5th at p. 312.) Whether that is an “additional requirement,” however, is the
crux of the issue.
6 Christianson assumed so because, as the court noted, “[a] judgment may include a
sentence that has been imposed but suspended or stayed.” (Christianson, supra, 97
Cal.App.5th at p. 311.) On this basis, the court concluded that the Legislature’s use of
“imposed” in section 1172.75 as a condition for proceeding towards resentencing is
satisfied—first for the CDCR and subsequently for the verifying court—if a prison prior
“enhancement [is] included in the abstract of judgment, regardless of whether it is
imposed or stayed.” (Christianson, at p. 312.) Like in Renteria, however, this analysis in
essence no more than restates Gonzalez’s recognition that an “imposed” enhancement can
mean one “imposed and then stayed” as much as one “imposed and executed.”
As explained in Rhodius, however, we think the Legislature intended in
section 1172.75 the practical, frequent meaning Gonzalez identified for “imposed,”
namely that a sentence was imposed “and then execute[d], as opposed to impose[d] and
then stay[ed].” (Gonzalez, supra, 43 Cal.4th at p. 1126.) Section 1172.75 thus reserves
resentencing for when a section 667.5, subdivision (b), penalty enhancement has been
executed.
Rhodius drew support for this interpretation from the statutory language requiring
that resentencing under section 1172.75, subdivision (d)(1), must “result in a lesser
sentence” and in the accompanying legislative history. (Rhodius, supra, 97 Cal.App.5th
at pp. 44, 45-48.) In particular, we found section 1172.75, subdivision (d)(1)’s
“requirement that the resentencing shall result in a lesser sentence than the one originally
imposed” (italics added) to mean that the Legislature intended recall and resentencing to
be available when, and only when, “the repealed enhancement increased the length of the
7 sentence.” (Rhodius, supra, 97 Cal.App.5th at p. 44.) In other words: “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.”
(Ibid.)
Our sister courts disagreeing with Rhodius have largely done so reasoning that
recall and resentencing to strike-stayed enhancements results in a “lesser” sentence in a
certain sense. “Thus, a stayed sentence enhancement remains as part of the judgment and
continues to carry the potential for an increased sentence in certain circumstances, and
removal of the stayed enhancement does provide some relief to the defendant by
eliminating that potential.” (Christianson, supra, 97 Cal.App.5th at p. 312 [citing People
v. Brewer (2014) 225 Cal.App.4th 98, 104 (Brewer), regarding a stay “preserv[ing] the
possibility of [later] imposition”]; see People v. Mayberry (2024) 102 Cal.App.5th 665,
674-675 [relying on Christianson], rev. granted Aug. 14, 2024, S285853; People v.
Saldana (2023) 97 Cal.App.5th 1270 [same], rev. granted Mar. 12, 2024, S283547.)
In our view, the statutory language requiring a lesser sentence is better reconciled
with an actual reduction in “time served” as the enactment’s goal, as reflected throughout
section 1172.75’s legislative history. (See Rhodius, supra, 97 Cal.App.5th at pp. 46-48
[identifying numerous such instances].) We summarized that history as follows: “The
findings, costs, and ramifications of Senate Bill 136 and 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
8 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.”
(Rhodius, at pp. 48-49.)
The post-Rhodius cases noted above do not address this extensive history, which
we continue to find persuasive. (See Rhodius, supra, 97 Cal.App.5th at p. 47 [legislative
history reflects “a clear presupposition by the Legislature of an imposed and executed
sentence”].)
Moreover, we think the purpose of a stay being to “preserve the possibility of
[later] imposition,” as identified in Christianson and Brewer, better fits with
section 1172.75 applying to executed section 667.5, subdivision (b), terms—not to stayed
ones. The Legislature directed courts in section 1172.75, subdivision (c), to look to the
“current judgment” to determine whether a defendant is eligible for resentencing. That
must mean something. Specifying the “current” judgment is odd: one would expect a
court considering resentencing to look, without this prodding, to the defendant’s current
judgment, not a superseded one. Emphasis on the current judgment may reflect that the
Legislature was attuned to the possibility of a stay in a defendant’s original judgment and
only intended resentencing to apply in such cases if the section 667.5, subdivision (b),
term was later executed, as reflected in the current judgment. There would be no need to
specify the current judgment is controlling if a stayed prior prison term in the defendant’s
9 original judgment triggered resentencing regardless of whether it was later executed or
remained stayed.
For all the foregoing reasons, we continue to adhere to Rhodius.
DISPOSITION
We affirm the trial court’s ruling denying defendant a resentencing hearing under
section 1172.75; the court’s ruling was correct because the prison prior enhancement
imposed under section 667.5, subdivision (b), at his original sentencing has never been
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
I concur:
RAMIREZ P. J.
10 [People v. Jimenez, E082632]
RAPHAEL, J., dissenting.
As the majority states, this appeal turns on the meaning of the word “imposed” in
Penal Code section 1172.75, subdivision (a).1 (Maj. opn., ante, at p. 3.) That provision
declares legally invalid prison prior enhancements that were imposed. Does the term
include “imposed and stayed” enhancements, such as the enhancement in Ivan Raul
Jimenez’s judgment? If so, that enhancement is to be struck from the judgment and
Jimenez resentenced under current law.
The majority states it reads section 1172.75 “as a whole” (Maj. opinion, ante, at p.
5) to find that “imposed and stayed” enhancements are excluded. But it relies on just two
isolated phrases. In my view, the better interpretation of the whole statute is that
“imposed” encompasses any qualifying prison priors that were imposed, regardless of
whether their punishment was stayed. This is explained in Section I below, discussing
several of the statute’s subdivisions. The section explains why the two phrases on which
the majority focuses, if anything, undermine its view.
The majority’s view, moreover, conflicts with 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 Jimenez resentencing for the sole reason that his sentencing judge
chose to stay the punishment on his enhancement.
1 Undesignated statutory citations in this dissent refer to the Penal Code.
1 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
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).) As the majority recognizes, we give statutory language its
usual and ordinary meaning. (Maj. opn, ante, at p. 4.) Ordinarily, an enhancement
placed in a judgment is described as “imposed” even if the punishment is stayed. Even
the majority describes the enhancement here as one that was “imposed.” (See, e.g., Maj.
opn, ante, at p. 2 [in “imposing an enhanced term for the prison prior”], p. 3 [cases
discuss “a prison prior enhancement imposed under former section 667.5, subdivision (b),
but currently stayed”].) Considering the ordinary language of subdivision (a) alone, there
2 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
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.”2
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.
2 Later, and in a different district, the People continued to agree that an “imposed and stayed” enhancement was “imposed” under section 1172.75, subdivision (a), but they argued that an inmate with such an enhancement nevertheless should not receive a resentencing. (People v. Saldana (2023) 97 Cal.App.5th 1270, 1275 & fn. 4 review granted Mar. 12, 2024, S283547.)
3 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.
(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.
4 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 Jimenez 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).
(§ 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
5 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
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].)
The majority, in contrast, sees the statutory requirement of verifying the “current”
judgment as supporting court elimination of “imposed and stayed” enhancements. (Maj.
opn., ante, at pp. 9-10) But every judgment that reaches the court is one that CDCR has
identified as including the enhancement. The Legislature was aware that CDCR had
identified 10,133 inmates with a judgment in which such an enhancement was imposed.
6 (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 483, supra, as amended July 7,
2021, p. 4.) The reason to have the court verify that the “current” judgment includes the
enhancement would be to eliminate enhancements that have been vacated since the
judgment that CDCR identified, not to perform a review under a standard that differs
from CDCR’s.
Consequently, the word “current” does nothing to advance the majority’s argument
and even undermines it. A “current” judgment (different from the original) might in
theory have the enhancement eliminated after a direct appeal, but an appeal would not
change an “imposed and executed” enhancement to one that is “imposed and stayed.” If
the statute did not use the word “current,” it would more plausibly be read to require the
trial court to scrutinize CDCR’s work, rather than to confirm no relevant change has
occurred in the interim.3
Moreover, 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
3 It is theoretically possible, though unlikely, that CDCR could identify a judgment with an “imposed and executed” prison prior; the case would return for a resentencing on direct appeal; and in a new judgment the trial court would “impose and stay” the prison prior. That would mean the current judgment would differ from the original one in a way relevant to the majority’s argument. But in practice, as here, nearly every “imposed and stayed” prison prior would be in the judgment identified by CDCR. The court’s verification of the “current” judgment does not correlate with this unlikely scenario. 7 provision that describes prison priors “imposed” without indicating that stayed
enhancements are excluded.
Finally, 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
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 struck is a lesser one than a sentence with one
included.
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.
8 (§ 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 striking 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.
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
9 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.
The majority (maj. opn., ante, at pp. 7-8) 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
10 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. 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 term “lesser” contradicts the majority’s view: it helps show the statute
includes defendants with indeterminate sentences and defendants with stayed
enhancements. For each, striking the enhancement alone is a lesser sentence but not a
shorter one.
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. 8.) That statutory purpose is
satisfied because any interpretation of “imposed” includes all defendants with “imposed
and executed” enhancements.
But the Legislature did not stop at eliminating the enhancements. Rather, it
enacted a separate policy into the codified text. The Legislature ordered the resentencing
of inmates based on 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
11 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
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
exclude those inmates with stayed punishment from section 1172.75 relief, we create
12 more sentencing disparities, not fewer.4 Perversely, it is defendants who merited stayed
prison time on their enhancement—often due to a lower level of culpability in the eyes of
the sentencing judge—who the majority denies the benefits of a resentencing.
The disparity the majority’s view creates may be more discernible if one considers
this case as an example. Jimenez’s 2018 sentence was increased by ten years due to two
mandatory “nickel priors” (§ 667, subd. (a)(1)) that enhanced his imprisonment from
twelve years eight months to twenty-two years eight months. Effective in 2019, however,
a change in the law “granted trial courts the discretion to strike or dismiss the previously
mandatory five-year prior serious felony conviction enhancement under section 667,
subdivision (a)(1).” (People v. Ellis (2019) 43 Cal.App.5th 925, 928.) If Jimenez
received a resentencing, he would have a chance to ask the judge to dismiss one or both
nickel priors in the furtherance of justice. (See § 1385, subd. (a).) He might rely on post-
sentencing factors, such as those identified in section 1172.75, subdivision (d)(3).
Yet, under the majority’s view, Jimenez is denied a resentencing solely because his
trial court stayed his one-year punishment on his prison prior. If the trial court had
executed punishment on that enhancement, not only would that punishment be removed
today, but Jimenez would have a chance to argue that the trial court should vacate the
nickel priors as well, reducing his sentence by five or ten years. At his original
4 Section 1172.75, however interpreted, arguably leaves disparities, as inmates who received no prison prior enhancement at all do not receive a resentencing. Yet the disparities created by the majority’s interpretation are more direct, as they involve the class of inmates with a prison prior, sorting them for the resentencing benefit based on whether their punishment was executed. 13 sentencing, Jimenez’s trial judge exercised discretion in his favor not only by staying the
punishment, but also by granting a motion under People v. Romero (1996) 13 Cal.4th 497
to strike a prior conviction, noting Jimenez’s lack of violence and that his criminal record
was not increasing in severity. In contrast, a defendant who the sentencing judge thought
deserved more punishment—and thus received imprisonment on his prison prior—would
today have a chance to seek the more lenient sentence simply because their prison prior
enhancement was not stayed. This is not the uniformity in sentencing that section
1172.75, subdivision (d)(2) seeks.
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.5
II
For the reasons provided, the word “imposed” in subdivision (a), read either alone
or with the whole statute, is best interpreted as including both “imposed and executed”
5 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, p. 93, eff. Jan. 1, 2025).)
14 and “imposed and stayed” enhancements. The majority relies on two statutory terms—
“lesser” sentence and “current” judgment—that do not advance its argument that
“imposed” is shorthand for “imposed and executed.”
The Legislature did not have to make retroactive its abolition of prison prior
enhancements, but it did. It did not have to provide for full resentencing of those whose
enhancements are invalidated, but it did. The majority finds Jimenez ineligible for
resentencing, denying him the opportunity to ask a judge to dramatically reduce his
sentence. The sole reason for the denial is that his original sentencing judge found him
less culpable and stayed the one-year sentence on his prison prior enhancement.
Defendants like Jimenez, but who did not get that stay, will have their punishment struck
and also be allowed to try to reduce their sentence further under current law. Our
Legislature told us precisely why it enacted the resentencing provision: “to eliminate
disparity of sentences and to promote uniformity of sentencing.” (§ 1172.5, subd. (d)(2).)
That purpose is not served today.
RAPHAEL J.