People v. Marquez CA4/1

Opinion

Filed 8/22/24 P. v. Marquez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083392

Plaintiff and Respondent,

v. (Super. Ct. No. SCN304918)

ISSAC GOMEZ MARQUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Reversed and remanded with instructions. Richard Jay Moller, 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, Collette C. Cavalier, Kathryn Kirschbaum and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION Isaac Gomez Marquez appeals the denial of his motion for resentencing

under Penal Code1 section 1172.75. Because the trial court’s ruling was based on an erroneous interpretation of section 1172.75, we reverse and remand for full resentencing. In July 2012, Marquez pled guilty to robbery (§ 211) and admitted he personally used a deadly weapon (§ 12022, subd. (b)(1)). He also admitted he suffered a prior felony conviction in 2006 that qualified as a strike prior (§§ 667, subd. (b)–(i) and 1170.12), a serious felony prior (§§ 667, subd. (a)(1), and 1192.7, subd. (c)), and a prior prison term enhancement (§ 667.5, former subd. (b) (hereafter, “section 667.5(b)”)). In August 2012, the trial court sentenced Marquez to a total prison term of 12 years, consisting of the middle term of three years for the robbery, doubled for the strike prior, plus one year for the weapon enhancement and five years for the serious felony enhancement. It stayed the one-year punishment for the prior prison term enhancement under section 667.5(b). Effective January 1, 2022, section 1172.75 was added to the Penal Code by virtue of the passage of Senate Bill No. 483 (2021–2022 Reg. Sess.). (Stats. 2021, ch. 728, § 3.) Section 1172.75 provides that certain sentence enhancements “imposed prior to January 1, 2020” pursuant to section 667.5(b), are “legally invalid.” (§ 1172.75, subd. (a).) It directs the Department of Corrections (CDCR) to identify those persons in custody “currently serving a term for a judgment that includes an enhancement described in subdivision (a) . . . to the sentencing court that imposed the enhancement.” (Id., subd. (b).) Upon receiving this information, “[i]f the

1 Further undesignated statutory references are to the Penal Code.

2 court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant.” (Id., subd. (c).) “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 a lesser sentence would endanger public safety. (Id., subd. (d).) The CDCR identified Marquez as a person currently serving a prison term that included an enhancement imposed pursuant to section 667.5(b). In September 2022, the trial court issued a tentative order denying relief and appointing counsel to represent Marquez. Marquez then filed a motion seeking a full resentencing hearing under section 1172.75. Following a hearing in November 2023, the trial court confirmed its tentative and issued an order finding Marquez ineligible for any relief. The court reasoned his prior prison term enhancement had been stayed, such that he was “not currently serving any additional time as a result of the enhancement.” In the court’s view, the enhancement therefore had not been “imposed” within the meaning of section 1172.75, subdivision (a). The court relied on People v. Rhodius (2023) 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169 (Rhodius) in support of its interpretation of section 1172.75. The sole issue presented in Marquez’s appeal is whether the trial court erred in its interpretation of section 1172.75. He contends it did, and that the statute affords relief to all defendants whose sentences include a prior prison term enhancement, whether it was imposed and executed or imposed and stayed. The People contend the court did not err, because section 1172.75 applies only to those defendants whose prior prison term enhancements were imposed and executed. On our de novo review of this issue (People v. Lewis (2021) 11 Cal.5th 952, 961), and consistent with this court’s prior decisions on

3 the issue, we conclude Marquez has the better argument. Accordingly, we will reverse the order and remand for full resentencing. The proper interpretation of section 1172.75 in this context has now been the subject of four published appellate opinions. (People v. Renteria (2023) 96 Cal.App.5th 1276, 1282–1283; Rhodius, supra, 97 Cal.App.5th at pp. 43–48, review granted; People v. Christianson (2023) 97 Cal.App.5th 300, 311–316, review granted Feb. 21, 2024, S283189 (Christianson); People v. Saldana (2023) 97 Cal.App.5th 1270, 1276–1279, review granted Mar. 12, 2024, S283547 (Saldana).) In Renteria, the trial court declined to apply section 1172.75 to the defendant’s prior prison term enhancements on the ground “imposed” as used in subdivision (a) of section 1172.75 did not include enhancements that were stayed. (Renteria, at p. 1282.) The Sixth Appellate District reversed, holding “imposed” includes “enhancements that are imposed and then executed as well as those that are imposed and then stayed.” (Ibid. [cleaned up].) In Rhodius, the Court of Appeal reached the opposite conclusion, relying heavily on People v. Gonzalez (2008) 43 Cal.4th 1118, 1126 (Gonzalez), in which the California Supreme Court interpreted the word “imposed” in section 12022.53, subdivision (f), to mean imposed and executed. Examining section 1172.75 as a whole, the Rhodius court observed subdivision (d)(1) of section 1172.75 requires the trial court to impose a “lesser sentence than the one originally imposed,” and reasoned the only way the enhancement could affect the length of a sentence is if it had been imposed and executed. (Rhodius, supra, 97 Cal.App.5th at pp. 43–44, review granted.) It also found the legislative history of section 1172.75 demonstrates “a clear presupposition by the Legislature of an imposed and executed sentence,” including a legislative analysis that found sentencing enhancements “put significant

4 financial burdens on taxpayers and families statewide.” (Rhodius, at pp. 46– 47 [cleaned up].) This court, in Christianson, rejected a narrow interpretation of section 1172.75 and held section 1172.75 applies to cases in which the inmate’s abstract of judgment includes one or more section 667.5(b) enhancements that were previously imposed but stayed. (Christianson, supra, 97 Cal.App.5th at p. 305, review granted.) Although we considered the word “imposed” in section 1172.75, subdivision (a), to be “at least somewhat ambiguous,” we concluded that in the context of the statutory scheme, stated legislative intent, and statutory history, “imposed” was not “limited to enhancements that were imposed and executed.” (Christianson, at p. 311.) We observed subdivision (a) of section 1172.75 requires the CDCR to identify all inmates “ ‘currently serving a term for a judgment that includes an enhancement described in subdivision (a),’ ” and that a judgment “may include a sentence that has been imposed but suspended or stayed.” (Christianson, at p. 311.) We found it illogical that the Legislature would require the CDCR to identify a larger class of inmates based on the abstract of judgment, only to have the trial court “then look at the same abstracts of judgment available to the CDCR to determine whether” the enhancements had been stayed. (Id. at p. 312.) We also disagreed that if the statute were interpreted to encompass stayed enhancements, this would create a conflict with subdivision (d)(1) of section 1172.75. We explained that when a punishment is stayed, “the trial court retains the ability to lift the stay and impose the term under certain circumstance[s],” and that “removal of the stayed enhancement” therefore “provide[s] some relief to the defendant by eliminating that potential.” (Christianson, supra, 97 Cal.App.5th at p. 312, review granted.) And while in

5 Gonzalez, supra, 43 Cal.4th at page 1126, the California Supreme Court interpreted the word “imposed” in section 12022.53, subdivision (f), to mean imposed and executed, we did not find Gonzalez to be controlling. In our view, the high court had interpreted “imposed” in the context of a statute intended to ensure longer sentences for felons who use firearms, whereas section 1172.75 was “expressly aimed at reducing sentences[.]” (Christianson, at p. 314.) And we found the legislative history to be consistent with our reading of section 1172.75. (Christianson, at p. 316.) In Saldana, the Third Appellate District concluded that section 1172.75 broadly affords relief to all defendants with a now-invalid section 667.5(b) enhancement, regardless of whether execution of the enhancement was stayed. In doing so, it relied on reasoning from Christianson, and disagreed with the Rhodius court’s view that defendants whose sentences include stayed enhancements would not be subject to a lesser sentence if their enhancement was stricken. (Saldana, supra, 97 Cal.App.5th at pp. 1277, 1278, review granted.) Unsurprisingly, Marquez asks us to interpret section 1172.75 as we did in Christianson to include all cases in which the trial court imposed a prior prison term as a part of the original judgment. He observes this outcome is consistent with the outcomes in Renteria and Saldana. In response, the People ask us to follow Rhodius rather than Christianson, hold that section 1172.75 does not apply to an imposed and stayed section 667.5(b) enhancement, and strike the stayed enhancement on the ground it resulted in an unauthorized sentence. We decline the People’s request. “Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior decisions from another panel of the same undivided district or from the same division.” (Estate of

6 Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9.) Christianson is a decision of this appellate division, and the People have not provided us with a compelling reason for reconsidering it. Although they assert that Rhodius is “well- reasoned,” we were aware of Rhodius when we decided Christianson and we expressly disagreed with the Rhodius court’s interpretation of section 1172.75. (See Christianson, supra, 97 Cal.App.5th at p. 316, fn. 8, review granted.) Accordingly, we adhere to the reasoning and holding of Christianson and conclude section 1172.75 affords relief to defendants like Marquez whose abstracts of judgment include one or more section 667.5(b) enhancements that were previously imposed but stayed. Marquez is therefore entitled to a full resentencing upon remand, including the application of “any other changes in law that reduce sentences or provide for judicial discretion.” (§ 1172.75, subd. (d)(2).)

7 DISPOSITION The order denying Marquez’s motion for resentencing pursuant to section 1172.75 is reversed and the matter is remanded with instructions to the court to issue a new order granting Marquez’s motion.

DO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

RUBIN, J.