People v. Lewis CA4/2

• Court: California Court of Appeal
• Decided: April 29, 2025
• Docket: E082976
• Status: Unpublished

Opinion

Filed 4/29/25 P. v. Lewis CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082976

v. (Super.Ct.No. RIF099009)

DEMOND ODELL LEWIS, OPINION

Defendant and Appellant.

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

Affirmed with directions.

Robert L.S. Angres, 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, Christopher P. Beesley and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant Demond Odell Lewis appeals from the trial court’s order

finding him ineligible for recall of his sentence and resentencing under Penal Code

section 1172.75.1 Almost two decades earlier, as directed by this court on remand

following defendant’s direct appeal of his underlying conviction (People v. Lewis (July 9,

2004, E033480) [nonpub. opn.] (Lewis)), the trial court struck two prison prior

enhancements (§ 667.5, subd. (b)) that had been imposed but stayed at defendant’s

original sentencing hearing. Because those enhancements were stricken, the trial court

did not err in denying defendant resentencing under section 1172.75. We therefore affirm

the trial court’s order, with one correction. On remand, we direct the trial court to issue

an amended abstract of judgment to reflect that the trial court struck the prison prior

enhancements on December 3, 2004.

BACKGROUND

In February 2003, a jury found defendant guilty of attempted murder (§§ 187,

subd. (a), 664; count 1), assault with a deadly weapon (§ 245, subd. (a)(2); count 2), and

possession of a firearm (former § 12021, subd. (a)(1); count 3). The jury found a gang-

benefit allegation (§ 186.22, subd. (b)) true as to all three counts, as well as firearm use

(§§ 12022.5, subd. (a), 12022.53, subd. (d)) and great bodily injury (§ 12022.7, subd. (a))

allegations on counts 1 and 2. In bifurcated proceedings, the court found defendant had

two prison prior convictions (§ 667.5, subd. (b)), two prior serious felony convictions

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

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 subd. (c)(1)). At sentencing, the court imposed an indeterminate term of 95 years to life

in state prison, consecutive to a 14-year determinate term. The court imposed one-year

terms for each of defendant’s two prison priors, but stayed their execution.

Defendant appealed his conviction and sentence and, in pertinent part, this court

ordered the prison priors stricken, as follows: “The People concede that the trial court

should have stricken the one-year prior prison term enhancements, rather than merely

staying them. (See People v. Jones (1993) 5 Cal.4th 1142, 1153 . . . [when same prior

conviction is used to support prior serious felony enhancement and prior prison term

enhancement, the lesser enhancement should be stricken].) This error can be corrected on

remand.” (Lewis, supra, E033480.)

On remand, the trial court in December 2004 struck the prison priors as this court

instructed: “Matter having been returned on a Remittitur from the Court of Appeal[] as to

Priors 1 and 2 667.5(b) PC. [¶] Court orders Prior(s) 1 2 Stricken.” The record in the

present appeal does not suggest the trial court issued an amended abstract of judgment

after striking the prison priors.

In December 2023, the trial court considered defendant’s eligibility for recall of

his sentence and resentencing under section 1172.75 and found he was ineligible.

Defendant’s case was one of dozens considered together that day by stipulation of

the parties, pursuant to which the court operated under the assumption that each

defendant’s “one-year prior state prison enhancement(s) had been ‘stayed.’ ”

3 In reaching the conclusion defendant was ineligible for relief, the court noted

expressly that it considered several recently decided cases: People v. Saldana (2023)

97 Cal.App.5th 1270 (Saldana), review granted March 12, 2024, S283547; People v.

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

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

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

Defendant’s petition was not heard or reported separately, but the parties stipulated

to incorporate into defendant’s court file the reporter’s transcript and other relevant

documents from the lead case heard that day. In that case, the defendant’s original

sentencing court had stayed execution of his penalty enhancement or enhancements

imposed under section 667.5, subdivision (b). The trial court inquired of the defendant’s

attorney: “Do you believe that the Legislature intended this statute [i.e., § 1172.75] to

apply to someone for whom a Complaint or Information included a prison prior that was

either stricken or dismissed at the time of the pronouncement of judgment?” The

attorney answered, “No.”

In denying the defendant resentencing relief under section 1172.75, as it likewise

did for defendant here, the trial court concluded the Legislature intended resentencing

relief for enhancements imposed for prison priors to extend only to “anyone . . . serving

time on them.” The court reiterated later in the hearing that “what the Legislature was

after” in enacting section 1172.75 was to provide a recall and resentencing mechanism

for inmates “serving additional time based on the[ir] prison priors.”

4 DISCUSSION

Defendant argues he is entitled to resentencing relief under section 1172.75

because the trial court at his original sentencing imposed enhancements for the prison

prior allegations the court found to be true. Defendant argues we should deem the

enhancements to have remained stayed up to the date the court considered his

resentencing petition, though this court previously ordered them stricken and the trial

court did so. In the alternative, defendant argues lenity requires construing the trial

court’s ruling on remittitur to have amounted to striking only the punishment for his two

prison priors, “and not the enhancements themselves.” (All caps. omitted.) Regardless,

defendant argues that whether viewed as stayed or his punishment only stricken,

section 1172.75 extends to either scenario. We conclude none of defendant’s various

arguments afford him relief.

At the time of defendant’s conviction and sentencing, “section 667.5,

subdivision (b) required trial courts to impose a one-year sentence enhancement for each

true finding on an allegation the defendant had served a separate prior prison term and

had not remained free of custody for at least five years.” (People v. Jennings (2019)

42 Cal.App.5th 664, 681.) Subsequently, section 1172.75 now provides, with an

exception that is not applicable here: “Any sentence enhancement that was imposed prior

to January 1, 2020, pursuant to subdivision (b) of Section 667.5 . . . is legally invalid.”

5 (§ 1172.75, subd. (a).2) Disagreement over what constitutes “imposed” within the

meaning of the statute has divided the Courts of Appeal, as we discuss briefly below.

Section 1172.75 further provides, as pertinent here, for recall and resentencing if

the superior court in which the defendant was sentenced “determines that the

[defendant’s] current judgment includes an enhancement described in subdivision (a).”

(§ 1172.75, subd. (c); see id., subd. (b) [specifying sentencing court as recall and

resentencing venue].) Additionally, the statute specifies that for defendants eligible for

recall and resentencing, their resentencing “shall result in,” “as a result of the elimination

of the repealed enhancement,” “a lesser sentence than the one originally imposed . . .

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.3)

Here, it is clear under the terms of section 1172.75 that defendant is ineligible for

resentencing because his prison prior enhancements were stricken. 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, any

section 667.5, subdivision (b), prison prior enhancement “imposed prior to January 1,

2 The exception specifies that only prior prison enhancements “for a prior conviction for a sexually violent offense” remain valid. (§ 1172.75, subd. (a).)

3 This subdivision, without our italics, quotation marks, and ellipses inserted for clarity, provides in full: “Resentencing 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. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.” (§ 1172.75, subd. (d)(1).)

6 2020,” provided it was not for a sexually violent offense, “the court shall recall the

sentence and resentence the defendant.” (§ 1172.75, subd. (c), italics added.) As noted,

this court ordered defendant’s two one-year prison prior enhancements stricken. (Lewis,

supra, D033480.) With those enhancements removed, nothing in his “current judgment”

would qualify defendant for recall of his sentence and resentencing under the statute.

Defendant’s alternative arguments are unavailing. Without deciding, but to give

full consideration to defendant’s claims, even assuming for the sake of argument that his

prison priors remained stayed in some undefined sense, or akin to being stayed, or

deeming only the punishment on defendant’s prison priors to have been stricken rather

than the priors altogether: none of these suppositions aid defendant. Simply put, we

agree with Rhodius, supra, 97 Cal.App.5th 38 that the critical term “imposed” in

subdivision (a) of section 1172.75 must be interpreted as shorthand for “ ‘ “impose[d] and

execut[ed].” ’ ” (Rhodius, at p. 43; see People v. Gonzalez (2008) 43 Cal.4th 1118, 1125

[recognizing “the word ‘impose[d]’ ” refers “often” to “enhancements that are ‘imposed

and then executed’ ”].) Rhodius reached this conclusion to make sense of codified

language the Legislature chose in enacting the statute, but, similarly, uncodified

provisions equally chosen in the statute’s preamble require the same conclusion.

Of particular note in the statute’s codified provisions, Rhodius examined 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, at p. 43, italics added.) Reasoning that “[t]he only

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

7 enhancement to have been imposed and executed,” Rhodius concluded that applying

section 1172.75 to a stayed prior prison term would require a resentencing court to

“arbitrarily lower” the defendant’s sentence in a way unrelated to the enhancement in

order to comply with the statute’s “lesser sentence” requirement. (Rhodius, at p. 44.)

Because the Legislature presumably must not have intended arbitrary sentence reductions

to meet this requirement, Rhodius held section 1172.75 must be interpreted to apply only

to prior prison enhancement terms that were imposed and executed. (Rhodius, at p. 44.)

Similarly, in the uncodified preamble to the statute, the Legislature stated its intent

expressly in a way incompatible with relief for stayed or stricken prison priors: “it is the

intent of the Legislature to retroactively apply [new limitations on prior prison term

enhancements] to all persons currently serving a term of incarceration in jail or prison

for these repealed sentence enhancements.” (Stats. 2021, ch. 728, § 1, italics added.) A

defendant who had his or her punishment on a prior prison enhancement stayed or

stricken at sentencing is not serving a term of incarceration in jail or prison for that

enhancement, so the Legislature manifestly did not intend to provide retroactive relief to

those defendants.

Other appellate panels—one before Rhodius and the others relying on

Christianson after Rhodius was decided—have held that section 1172.75 applies to prior

prison term enhancements that were imposed but stayed. (See People v. Renteria, supra,

96 Cal.App.5th 1276; see also Christianson, supra, 97 Cal.App.5th 300; Saldana, supra,

97 Cal.App.5th 1270; People v. Mayberry (2024) 102 Cal.App.5th 665 (Mayberry),

8 review granted Aug. 14, 2024, S285853.) All of these decisions since, and including

Rhodius, remain under review, as the high court considers the issue.

In brief, Christianson, Saldana, and Mayberry disagreed with Rhodius because

they viewed striking a stayed enhancement upon resentencing as resulting in a “lesser”

sentence in compliance with section 1172.75, subdivision (d)(1). As Christianson

explained, this view is grounded in a stayed enhancement’s “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.) Under this interpretation, striking a

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

the enhancement will be executed in the future. (Ibid.; see also Saldana, at p. 1278;

Mayberry, at pp. 674-675 [“Imposed-but-stayed prior prison term enhancements carry the

possibility of execution,” and striking them “eliminates their impact”].)

We do not agree with this rationale. It does not account for the uncodified

preamble to section 1172.75 stating the Legislature’s contrary intent. Likewise, the

codified 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].) Rhodius 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 burdens do

9 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; see also id. at p. 47 [the foregoing history reflects “a clear presupposition by

the Legislature of an imposed and executed sentence”].)

Nor does viewing defendant’s stricken prison priors as merely having been

stripped of punitive effect gain anything for defendant, under Rhodius or even under

Christianson. Contrary to Rhodius, if punishment on defendant’s prison priors is deemed

stricken, the trial court would have to arbitrarily lower his sentence in some other manner

to comply with the statute’s “lesser sentence” requirement. (§ 1172.75, subd. (d)(1).)

But this would violate the statute’s directive that, at a minimum, a “lesser sentence than

the one originally imposed” must occur “as a result of the elimination of the repealed

enhancement.” (Ibid., italics added.) That cannot happen even in the risk-avoiding sense

Christianson contemplated if punishment on the prison priors has already been stricken.

Defendant next points to the decision by a divided panel in People v. Espino

(2024) 104 Cal.App.5th 188 (Espino), review granted Oct. 23, 2024, S286987. The

majority in Espino saw no reason to distinguish between prison prior enhancements that

were imposed but stayed and those that were imposed but the punishment struck. (Id. at

p. 193 [“section 1172.75 should be interpreted to apply whenever a prison prior was

imposed, whether punishment was executed, stayed, or struck”].) Ostensibly, this

10 supports defendant’s position because enhancements were imposed on his prison priors at

his original sentencing, though later stricken at our direction.

The dissent in Espino, however, found the “additive character of the term of

imprisonment . . . integral to imposition of a sentence enhancement,” such that “when the

law otherwise prescribes an additional term of imprisonment, a trial court that elects to

strike that additional term of imprisonment has not imposed it—not even conditionally, as

would be the case when a court elects to stay the additional term.” (Espino, supra,

104 Cal.App.5th at p. 203 (dis. opn. of Lie, J.).) The dissent also echoes Rhodius’s

concern that the Legislature presumably did not intend to force resentencing courts to

arbitrarily lower sentences, noting that “eliminating an enhancement for which the court

had already stricken the punishment” does not, by itself, result in a lesser sentence.

(Espino, at p. 203, fn. 2 (dis. opn. of Lie, J.).) The majority opinion does not address

these issues, which contravene both Rhodius’s and Christianson’s analyses of

section 1172.75. On balance, we find the Espino dissent more persuasive than the

majority opinion.

For all of these reasons, the trial court did not err in finding defendant ineligible

for recall of his sentence and resentencing under section 1172.75.

11 DISPOSITION

The trial court’s order is affirmed, with one correction for the record. On remand,

the court is directed to issue an amended abstract of judgment to reflect that the trial court

struck defendant’s prison prior enhancements on December 3, 2004.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

McKINSTER Acting P. J.

MENETREZ J.