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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 196-197.)
5 We disagree with the holding in Espino. Because punishment for the
enhancements in this case was stricken, they were not imposed and executed, and the
section 1172.75 requirement for a resentencing hearing does not apply. In fact, since
punishment for the enhancements was previously stricken, there was nothing more the
trial court could do to eliminate punishment for the enhancements and impose a lesser
sentence. (§ 1172.75, subd. (d)(1).)
Defendant argues a prior enhancement for which the punishment has been stricken
remains on the abstract of judgment which could lead to imposition of punishment on the
enhancement in the future. (People v. Garner (2016) 244 Cal.App.4th 1113, 1118.)
Garner held that if a sentence is recalled, a trial court may reconsider all sentencing
choices, including a sentencing enhancement for which the punishment had previously
been stricken. (Ibid.) Christianson held that because stayed sentence enhancements
could potentially increase the sentence if the case were reversed on appeal or if there was
a recall of sentence, removal of the stayed enhancement could provide sentencing relief
by “eliminating that potential.” (Christianson, supra, 97 Cal.App.5th at p. 312.) The fact
that the enhancement could be used in a potential recall or reversal of sentence does not
add to the sentence imposed in this case. Moreover, section 1172.75 does not address any
collateral consequences of a prior prison term enhancement.
DISPOSITION
The clerk of the superior court is directed to correct the sentencing minute order
for May 25, 2018, nunc pro tunc and the abstract of judgment to reflect that the court
6 struck punishment for the two prior prison term enhancements under section 667.5,
subdivision (b). The clerk of the superior court is directed to forward copies of the
corrected abstract of judgment and minute order to CDCR. The order denying section
1172.75 resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
I concur:
McKINSTER J.
7 [People v. Lopez, E082898]
FIELDS J., Dissenting.
I respectfully dissent to the holding in the majority opinion that defendant is not
entitled to a full resentencing pursuant to Penal Code section 1172.75. The majority
opinion follows this court’s opinion in People v. Rhodius (2023) 97 Cal. App.5th 38
(Rhodius), review granted Feb. 21, 2024, S283169, which held that where a trial court
imposes a one-year sentence on a section 667.5, subdivision (b) prison prior, but stays the
punishment, a defendant is not entitled to a full resentencing under section 1172.75,
subdivision (a).
In my view, the defendant is entitled to a full resentencing pursuant to section
1172.75, subdivisions (a)-(c). The dispute here “centers around the meaning of the word
‘imposed’ as used in section 1172.75, subdivision (a), and, more specifically, whether a
sentence enhancement pursuant to section 667.5, subdivision (b) that was imposed and
stayed for a non-sexually-violent offense prior to January 1, 2020, is ‘a sentencing
enhancement described in subdivision (a)’ of section 1172.75.” (People v. Christianson
(2023) 97 Cal.App.5th 300, 311 (Christianson), review granted Feb. 21, 2024, S283189,
italics omitted.)
The Courts of Appeal are divided on this question, and the issue is currently before
the Supreme Court. (Compare Christianson, supra, 97 Cal.App.5th 300 [recall and
resentencing is available when prison prior enhancement is imposed and stayed]; People
v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted Mar. 12, 2024,
1 S283547 [same]; & People v. Renteria (2023) 96 Cal.App.5th 1276 [same] with Rhodius,
supra, 97 Cal.App.5th 38 [recall and resentencing is only available when prison prior
enhancement is imposed and executed].)
I generally agree with the Christianson decision, which in my view sets forth the
correct statutory interpretation of section 1172.75. (See Christianson, supra,
97 Cal.App.5th at pp. 311-315.) Section 1172.75, subdivisions (a) and (c), provide that a
defendant currently serving time on a judgment which includes a section 667.5,
subdivision (b) enhancement imposed before January 1, 2020, is entitled to a full
resentencing hearing.
The court in Christianson explicated that, “[o]n its face, the word ‘imposed’, in
this context, is at least somewhat ambiguous. As our high court has explained, ‘it is
important to understand that the word “impose” applies to enhancements that are
“imposed and then executed” as well as those that are “imposed and then stayed.
However, as a practical matter, the word ‘impose’ is often employed as shorthand to refer
to the first situation, while the word ‘stay’ often refers to the latter.”’” (Christianson,
supra, 97 Cal.App.5th at p. 311.)
Despite this apparent ambiguity, the Christianson court rejected the People’s claim
that the Legislature intended the word “‘imposed,’” as used in section 1172.75, to be
limited to enhancements that were imposed and executed. (Christianson, supra,
97 Cal.App.5th at p. 311.) Further, as the court explained in Christianson, “[s]ection
1172.75 requires the CDCR to identify all inmates ‘currently serving a term for a
2 judgment that includes an enhancement described in subdivision (a).’ [Citation.] A
judgment may include a sentence that has been imposed but suspended or stayed.
[Citation.] Thus, by its plain language, all that is required for the CDCR to identify an
inmate under section 1172.75, subdivision (b) is for the enhancement to be included in
the abstract of judgment, regardless of whether it is imposed or stayed. Had the
Legislature intended for the language in subdivision (b) to limit the identification to those
inmates that would necessarily be required to serve an additional term based on the
enhancement, it certainly could have done so.” (Christianson, supra, 97 Cal.App.5th at
pp. 311-312.)
The court in Christianson noted that “[t]he sentencing court must then ‘verify that
the current judgment includes a sentencing enhancement described in subdivision (a).’”
(Christianson, supra, 97 Cal.App.5th at p. 312; § 1172.75, subd. (c).) The court
continued as follows: “At this point, the incorporation of subdivision (a) requires that the
current judgment include a sentencing enhancement imposed pursuant to section 667.5,
subdivision (b). However, the 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). It does not follow
logic or reason to read these two subdivisions together in a manner that would require the
CDCR to identify a larger class of inmates — all those serving time on a judgment that
include a now invalid enhancement — only for the trial courts to then look
3 at the same abstracts of judgment available to the CDCR to determine whether the
previous court imposed additional time for, or stayed, the relevant] enhancements.”
(Christianson, at p. 312.)
Finally, Christianson observed that the overarching “statutory scheme at issue here
involves statutory amendments expressly aimed at reducing sentences by retroactively
eliminating a sentencing enhancement described as exacerbating “‘existing racial and
socio-economic disparities in our criminal justice system.’” (Christianson, supra, 97
Cal.App.5th at p. 314.) The court noted that the resentencing procedures set forth in the
statutory scheme promoted this legislative goal insofar as they “require that the trial court
conduct a full resentencing for those defendants impacted by the now invalid
enhancement in light of all associated sentencing reform.” (Ibid.) Given this legislative
objective, the Christianson court inferred that the Legislature presumably “intended to
provide broad relief to all defendants impacted by the now invalid section 667.5,
subdivision (b) enhancements.” (Ibid.)
I note that I respectfully disagree with one portion of Christianson.
Acknowledging that section 1172.75, subdivision (d)(1), requires a trial court to impose a
lesser sentence than originally imposed, Christianson rejected the notion that removing a
stayed term does not result in a lesser sentence. (Christianson, supra, 97 Cal.App.5th at
p. 312.) Rather, the court concluded that even a stayed term has potential consequences
to a sentence since 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.”
4 (Ibid.; accord, Saldana, supra, 97 Cal.App.5th at p. 1278 [stayed enhancement is part of
sentence and remains available if its execution becomes necessary].) I disagree with this
conclusion since a prison prior that was imposed before 2020, and was not for a sexually
violent offense, is now legally invalid under section 1172.75, subdivision (a); thus, a
court has no ability to lift a stay and impose such a prison prior in the future.
In any event, in the instant case, there is no dispute defendant was serving time on
a judgment which includes two section 667.5, subdivision (b) enhancements that were not
for a sexually violent offense. Section 1172.75 expressly provides that if a “current
judgment includes an enhancement described in subdivision (a), the court shall recall the
sentence and resentence the defendant.” (§ 1172.75, subd. (c).) Applying Christianson
here, defendant is entitled to a full resentencing under section 1172.75. (§ 1172.75,
subds. (a), (c); see Christianson, supra, 97 Cal.App.5th at pp. 314-315.) “By its plain
terms, 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
(Monroe); see People v. Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is
stricken on review, on 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.’”].) At resentencing, the court 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)) and shall
5 consider any “postconviction factors” militating against continued incarceration
(§ 1172.75, subd. (d)(3)).
We recognize the court in the instant case appears to have struck, rather than
stayed, the punishment on the prior prison enhancements. However, we conclude the
same reasoning in Christianson applies here. (People v. Espino (2024) 104 Cal.App.5th
188, 195-198 (Espino), review granted Oct. 23, 2024, S286987.) As recently held in
Espino, “section 1172.75 should be interpreted to apply whenever a prison prior was
imposed, whether punishment was executed, stayed, or struck.” (Id. at p. 193.)
The People ask us to follow Rhodius, supra, 97 Cal.App.5th 38, which held that
the express language in section 1172.75, subdivision (d)(1), requiring the resentencing to
“ ‘result in a lesser sentence than the one originally imposed as a result [of] the
elimination of the repealed enhancement,’ ” combined with the legislative history behind
the enactment of Senate Bill Nos. 136 and 483, require the conclusion that section
1172.75 does not invalidate prior prison term enhancements that were imposed but
stayed. (Id. at pp. 42-49.) Rhodius reasoned as follows: “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.” (Id. at p. 44.)
6 Although Rhodius was thoughtfully decided, I respectfully disagree with it and
agree with the reasoning of Christianson and Espino. (Christianson, supra, 97
Cal.App.5th at pp. 305, 312; Espino, supra, 104 Cal.App.5th at p. 193.)
Under Rhodius, the word “imposed” in section 1172.75, subdivision (a), means
“imposed and executed.” Thus, the “imposed and stayed” prior convictions in that case
were not “imposed” within the meaning of section 1172.75, subdivision (a). If that
interpretation is correct, then the prison prior convictions in that case would not be
legally invalid, and the trial court in Rhodius should not have struck them.1 Yet, the trial
court in Rhodius did strike them, strongly inferring their invalidity, and the Rhodius court
affirmed the trial court’s action. In my view, section 1172.75 either applies or does not
apply. The authority to strike the prior convictions comes only where section 1172.75
applies.
We further note that, although the length of sentence does not change when a trial
court vacates a now invalid prior conviction which had previously been stricken, the
defendant, nevertheless, receives a significant benefit. To the extent the abstract of
judgment will no longer show the prison prior convictions, the consequences of
defendant’s convictions are reduced. As a result of the court’s action, the case will no
longer reflect the prior convictions if a court assesses the appropriate disposition in any
future case or on a violation of parole in the current case.
Finally, a careful review of the statute reveals that the statute contains language
1 This assumes the judgment was final as of January 1, 2020, as Senate Bill No. 136 on its own is not retroactive to final judgments.
7 favorable to an interpretation consistent with that taken by Rhodius, and it also contains
language favorable to an interpretation consistent with that taken in Christianson. I agree
with the court in Espino, supra, 104 Cal. App. 5th at p. 198, that under the rule of lenity,
where the Legislature’s intent cannot be determined, courts must prefer the interpretation
that is most favorable to defendants.
In sum, I conclude that the trial court erred in finding defendant ineligible for
relief. The CDCR properly identified him as a person in custody “currently serving a
term for a judgment that includes an enhancement described in [section 1172.75,]
subdivision (a).” (§ 1172.75, subd. (b).) He was therefore entitled to a recall of his
sentence and a full resentencing under the terms of section 1172.75, which would include
the application of “any other changes in law that reduce sentences or provide for judicial
discretion” (§ 1172.75, subd. (d)(2)) and consideration of “postconviction factors”
militating against continued incarceration (§ 1172.75, subd. (d)(3)). I would reverse the
denial order and remand to the trial court for a full resentencing hearing pursuant to
section 1172.75, subdivisions (c) and (d). FIELDS J.