People v. Lopez CA4/2

CourtCalifornia Court of Appeal
DecidedJanuary 16, 2025
DocketE082898
StatusUnpublished

This text of People v. Lopez CA4/2 (People v. Lopez CA4/2) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lopez CA4/2, (Cal. Ct. App. 2025).

Opinion

Filed 1/16/25 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082898

v. (Super.Ct.No. SWF1600815)

ANTONIO CEASAR LOPEZ, OPINION

Defendant and Appellant.

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

Affirmed with directions.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant

and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,

Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and

Respondent.

1 PROCEDURAL HISTORY

Defendant Antonio Ceasar Lopez pled guilty to count 2, possession of a firearm by

a felon (Pen. Code, § 29800, subd. (a)(1))1; and count 3, being under the influence of a

controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a)). A jury

then found him guilty of count 1, assault with a firearm and found true his personal use of

a firearm during its commission. (§§ 245, subd. (b), 12022.5, subd. (a).) Defendant

admitted that he had suffered two prior prison terms (§ 667.5, subd. (b)), one prior

serious felony (§ 667, subd. (a)), and one prior strike conviction (§§ 667, subds. (c),

(e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of 17 years in

prison. The superior court struck the punishment for two prior prison term enhancements

under section 667.5, subdivision (b).2

The superior court determined defendant was ineligible for resentencing under

section 1172.75. Defendant filed a timely appeal from that order.

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

2 The minute order for the sentencing hearing and the abstract of judgment both erroneously state the court stayed the punishment for the section 667.5, subdivision (b) enhancements and must therefore be corrected. (People v. Boyd (2024) 103 Cal.App.5th 56, 63 [a court has the power to correct clerical errors in the record at any time. Clerical error occurs when a mistake is made in recording the judgment].)

2 DISCUSSION3

Section 1172.75, subdivision (a) states, “Any sentence enhancement that was

imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, . . . is

legally invalid.” Subdivision (b) of section 1172.75 directs the California Department of

Corrections and Rehabilitation (CDCR) and county correctional administrators to identify

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

enhancement” under section 667.5, subdivision (b).

Upon receipt of the list, the sentencing court must verify that “the current

judgment includes a sentencing enhancement described in subdivision (a).” (§ 1172.75,

subd. (c).) If so, the sentencing court must recall the sentence and resentence the

defendant. (Ibid.)

At the resentencing, a sentence less than the original sentence must be imposed

due to the elimination of the enhancement, unless the court finds a lesser sentence would

endanger public safety. The court must also apply any other changes in law that reduce

sentences or provide for judicial discretion. (§ 1172.75, subd. (d)(1)-(2).)

The appellate courts are divided on whether these provisions apply to prior prison

term enhancements that have been stayed or stricken, and the California Supreme Court

has granted review in most of these cases. In People v. Rhodius (2023) 97

Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius), the sentencing

court imposed but stayed the punishment for two prison prior enhancements under

3 Because the facts of the underlying case are not relevant to the issue on appeal, we omit a statement of facts.

3 section 667.5, subdivision (b). At the section 1172.75 hearing, the trial court struck the

two prison priors but denied a full resentencing hearing. (Rhodius, supra, at pp. 41-42.)

On appeal in Rhodius, this court interpreted the word “‘imposed’” in subdivision (a) of

section 1172.75 to mean a sentence enhancement that was “‘imposed and executed.’”

(Rhodius, at pp. 44-45, 47-48.) In interpreting section 1172.75, this court in Rhodius

looked at the statute as a whole and determined the requirement that resentencing under

the statute should result in a lesser sentence than the original one meant that the prior

prison term must have been imposed and executed. (Rhodius, at pp. 43-45.) We

determined the legislative history indicated an intent to end “double” punishment for

prior convictions and longer incarceration periods. (Id., at p. 46.) Because the

enhancement had been stayed and the sentence could not be lowered in a resentencing

hearing, this court held in Rhodius that section 1172.75 did not apply to it. (Rhodius, at

pp. 45, 48-49.) We therefore held that section 1172.75 did not apply to prior prison term

enhancements that had been stayed. (Rhodius, at pp. 48-49.)

We apply the reasoning of this court in Rhodius and affirm the trial court’s denial

of a resentencing hearing. “‘By definition, a sentence enhancement is “an additional term

of imprisonment added to the base term.”’” (People v. Gonzalez (2008) 43 Cal.4th 1118,

1124.) If the punishment for an enhancement is stricken, it cannot be used to add

punishment in that case. (People v. Fuentes (2016) 1 Cal.5th 218, 225-226; People v.

Flores (2021) 63 Cal.App.5th 368, 383.)

4 Other courts, such as the Fourth Appellate District, Division One in People v.

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

2024, S283189, interpreted the word “‘imposed’” to include prior prison term

enhancements which had been imposed and stayed. Christianson reasoned in part that

the court retains the ability to lift the stay and impose the punishment for the

enhancement under certain circumstances, which the court held was more in keeping with

the Legislature’s intent to reduce sentences when enacting section 1172.75.

(Christianson, supra, at pp. 311-314; see People v. Mayberry (2024) 102 Cal.App.5th

665, 673-676, review granted Aug. 14, 2024, S285853 [Fifth District]; People v. Saldana

(2023) 97 Cal.App.5th 1270, 1272-1273, review granted Mar. 12, 2024, S283547 [Third

District]; People v. Renteria (2023) 96 Cal.App.5th 1276, 1281-1283 [Sixth District].)

In the present case, punishment for the prior prison term enhancements was

stricken, not stayed. In People v. Espino (2024) 104 Cal.App.5th 188 (Espino), review

granted October 23, 2024, S286987, the Sixth District Court of Appeal held that the term

“‘impose[d]’” as used in section 1172.75 also included prior prison term enhancements

for which punishment had been stricken. Espino held that defendants with stricken

punishment for prior prison term enhancements are entitled to full resentencing,

reasoning that the Legislature intended the phrase “‘[a]ny sentence enhancement’” in

section 1172.75 to be applied broadly, whether the punishment was executed, stayed or

stricken. (Espino, supra, at pp.

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Related

People v. Gonzalez
184 P.3d 702 (California Supreme Court, 2008)
People v. Garner
244 Cal. App. 4th 1113 (California Court of Appeal, 2016)
People v. Fuentes
375 P.3d 928 (California Supreme Court, 2016)
People v. Buycks
422 P.3d 531 (California Supreme Court, 2018)

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People v. Lopez CA4/2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lopez-ca42-calctapp-2025.