People v. Velasquez CA4/3

• Court: California Court of Appeal
• Decided: May 6, 2025
• Docket: G063791
• Status: Unpublished

Opinion

Filed 5/6/25 P. v. Velasquez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G063791

v. (Super. Ct. No. 16HF1104)

HERIBERTO VELASQUEZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Andre Manssourian, Judge. Reversed and remanded with directions. Allen G. Weinberg, 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, Robin Urbanski and Brendon Marshall, Deputy Attorneys General, for Plaintiff and Respondent. Heriberto Velasquez appeals from the denial of his petition for recall and resentencing pursuant to Penal Code section 1172.75 (all undesignated statutory references are to this code). Velasquez contends the trial court erred in concluding he was not entitled to relief because his enhancements for prior prison terms under former section 667.5, subdivision (b) (prison priors) were stricken for purposes of sentencing. We agree with Velasquez and conclude he is entitled to be resentenced under section 1172.75. Thus, we reverse and remand for resentencing. PROCEDURAL HISTORY In 2018, Velasquez pled guilty to attempted murder (§ 664, subd. (a), 187, subd. (a)), shooting at an occupied motor vehicle (§ 246), possessing a firearm as a felon (§ 29850, subd. (a)(1)), being an active participant in a criminal street gang while carrying a loaded firearm in public (§ 29800, subds. (a) & (c)(3)), and the unlawful taking of a vehicle (Veh. Code § 10851, subd. (a)). Relevant here, in addition to admitting the truth of other allegations, certain enhancements and priors, Velasquez admitted to having two prison priors. Based on Velasquez’s admissions, the trial court struck the punishments as to the prison priors for purposes of sentencing. In November 2023, Velasquez filed a petition for recall and resentencing under section 1172.75, which the trial court denied finding Velasquez was “ineligible for relief because all related enhancements were either stayed or stricken at time of sentencing.”

2 DISCUSSION “Prison priors are governed by section 667.5. When first enacted in 1976, this section required trial courts to impose a one-year enhancement for any nonviolent felony for which a prison sentence was imposed, unless the defendant remained free of custody for at least five years after completing that sentence.” (People v. Espino (2024) 104 Cal.App.5th 188, 194, review granted Oct. 23, 2024, S286987 (Espino).) Now, section 1172.75 deems certain one-year sentence enhancements for prison priors, imposed before January 1, 2020, to be invalid and sets forth a mechanism for resentencing individuals “serving a term for a judgment” that includes one or more prison priors. (§ 1172.75, subds. (a) & (b).) The sole issue before us in this appeal is whether section 1172.75 entitles a defendant to a resentencing hearing if the defendant’s prison priors were imposed but stricken for the purposes of sentencing. There is a split of authority in the appellate courts regarding whether a trial court must conduct a full resentencing hearing pursuant to section 1172.75 when an invalidated prison prior was imposed and stayed, and the issue is currently pending before the California Supreme Court in

3 People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius).1 To determine whether a prison prior that was stricken for purposes of sentencing entitles a defendant to a full resentencing hearing under section 1172.75, we follow the well-established principles of statutory interpretation. “The proper interpretation of a statute is a question of law we review de novo.” (People v. Lewis (2021) 11 Cal.5th 952, 961.) The fundamental task here is to determine the Legislature’s intent and effectuate the law’s purpose. (Ibid.) “‘“‘“We begin by examining the statute’s words, giving them a plain and commonsense meaning.”’”’” (Ibid.) “‘We examine that language, not in isolation, but in the context of the statutory framework as a whole to discern its scope and purpose and to harmonize the various parts of the enactment. [Citation.] “If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other

1 In Rhodius, the court concluded section 1172.75 does not apply

if the defendant’s prison priors were previously imposed and stayed. (Rhodius, supra, 97 Cal.App.5th at pp. 41–42, 45, 49, rev.gr.) However, several other Courts of Appeal have concluded section 1172.75 applies when prison priors were imposed in the original judgment, regardless of whether the punishment was stayed or stricken. (People v. Mayberry (2024) 102 Cal.App.5th 665, 668 [prison priors stayed], review granted Aug. 14, 2024, S285853; People v. Saldana (2023) 97 Cal.App.5th 1270, 1272–1274 [prison priors stayed], review granted Mar. 12, 2024, S283547 (Saldana); People v. Christianson (2023) 97 Cal.App.5th 300, 305 [prison priors stayed], review granted Feb. 21, 2024, S283189 (Christianson); People v. Renteria (2023) 96 Cal.App.5th 1276, 1282–1283 [prison priors stayed]; Espino, supra, 104 Cal.App.5th at p. 193 [prison prior stricken for purposes of sentencing], rev.gr.)

4 aids, such as the statute’s purpose, legislative history, and public policy.”’” (People v. Prudholme (2023) 14 Cal.5th 961, 975–976.) Under section 1172.75, subdivision (a), “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to [former section 667.5, subdivision (b)], except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” Citing to the reasoning in Rhodius and People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), the Attorney General argues Velasquez is ineligible for resentencing because his prison priors were “struck, not imposed.” We disagree. Subdivision (b) of section 1172.75 directs “[t]he Secretary of the Department of Corrections and Rehabilitation 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 [invalid] enhancement . . . and . . . provide [their information] to the sentencing court that imposed the enhancement.” This obligation in subdivision (b) is not limited to the identification of only those defendants who are actually serving a sentence for the prison prior. The absence of such a limitation indicates the Legislature did not intend to restrict relief to those defendants whose sentences had been imposed and executed as the Attorney General argues. If the Legislature had intended such a limitation, it had the ability to do so. (Christianson, supra, 97 Cal.App.5th at p. 313, rev.gr.) In Gonzalez, our Supreme Court analyzed the words “‘impose’” and ‘“imposed’” in different subdivisions of section 12022.53 to harmonize its provisions. (Gonzalez, supra, 43 Cal.4th at pp. 1126–1127.) Construing sections 12022.53 and 12022.5 in Gonzalez, the Supreme Court stated: “[I]t is

5 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.’” (Gonzalez, at p. 1125 [quoting a case also addressing firearm enhancements under §§ 12022.5 & 12022.53].) However, multiple courts have found Gonzalez to be distinguishable. (See, e.g., Saldana, supra, 97 Cal.App.5th at p. 1277, rev.gr.) Here, there is no issue of contradicting subdivisions in section 1172.75, unlike the situation in Gonzalez. (See Saldana, at p. 1277.) Also, the legislative intent guiding the Supreme Court’s interpretation in Gonzalez is the opposite of the legislative intent behind section 1172.75. In Gonzalez, “the Legislature’s stated intent was to ensure that ‘“substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.”’” (Christianson, supra, 97 Cal.App.5th at p. 313, rev.gr.) Here, the Legislature had a different intent in enacting section 1172.75. As the Christianson court explained, “[T]he 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.’ [Citation.] Consistent with that intent, the other provisions of the statute 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. . . . Thus, it appears the Legislature intended to provide broad relief to all defendants impacted by the now invalid section 667.5,

6 subdivision (b) enhancements.” (Christianson, at p. 314; accord, Saldana, at p. 1278.) We have considered the Attorney General’s arguments as well as the reasoning in Rhodius and acknowledge the Rhodius court makes valid points in its discussion of the legislative intent behind section 1172.75. But this does not convince us the statute must be interpreted as only applying to defendants whose prison priors were imposed and executed. Indeed, we struggle to find ambiguity in the statute’s text warranting the need to examine the legislative history for guidance. (See People v. Prudholme, supra, 14 Cal.5th at p. 976.) An enhancement found to be true becomes part of the judgment and must be addressed as part of the sentencing process. The sentence on the enhancement may then be imposed and executed, or imposed and stayed or stricken for the purposes of sentencing, so that the enhancement does not increase the defendant’s sentence. The prison prior is accounted for in the judgment whether or not the sentence is increased because of such. Consequently, we do not draw a distinction between an executed sentence and one that is stayed or stricken for purposes of sentencing in the application of section 1172.75. Pending direction from the California Supreme Court, we conclude, in line with the weight of authority, the term “imposed” in section 1172.75 applies to defendants, like Velasquez, regardless of whether the prison prior was originally stayed, stricken for purposes of sentencing, or executed. We therefore reverse the trial court’s postjudgment order and remand to the trial court.

7 DISPOSITION The postjudgment order denying Velasquez’s petition for recall and resentencing is reversed and the matter is remanded to the trial court for resentencing. Upon conclusion of the new sentencing hearing, the court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

MOTOIKE, J.

I CONCUR:

SANCHEZ, ACTING P. J.

8 DELANEY, J., Concurring.

I agree with the majority that the sole issue in this case concerns the interpretation of Penal Code section 1172.75, and I agree the trial court erred in denying defendant Heriberto Velasquez’s resentencing petition.1 I write separately because I believe the statutory analysis which compels that conclusion is different than that articulated in People v. Christianson (2023) 97 Cal.App.5th 300, review granted February 21, 2024, S283189 (Christianson), and the other cases on which the majority relies. “Our task when interpreting statutory language is to discern the Legislature’s intent ‘so as to effectuate the purpose of the law.’ [Citation.] ‘The statutory language itself is the most reliable indicator, so we start with the statute’s words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute’s plain meaning governs.’” (People v. Hupp (2023) 96 Cal.App.5th 946, 950.) Section 1172.75 requires resentencing when a defendant’s judgment includes a now-invalid prison prior sentencing enhancement “imposed” pursuant to a former version of section 667.5, subdivision (b). (§ 1172.75, subds. (a), (c).) The Attorney General argues the word imposed should be interpreted to mean imposed and executed. On its face, section 1172.75 does not require a defendant to have been subjected to a term of imprisonment to qualify for resentencing. Rather, the statute is broadly worded to apply whenever a prior prison term enhancement was “imposed,” without further qualification. (§ 1172.75, subds.

1 All further statutory references are to the Penal Code.

1 (a), (c).) Had the Legislature intended to limit section 1172.75’s reach to cases where the enhancement was imposed and executed, it could have expressly done so. But it did not. When the plain language of a statute is clear, courts are not at liberty to rewrite it to conform to a presumed legislative intent which does not appear in its text. (See Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 807; Figueroa v. FCA US, LLC (2022) 84 Cal.App.5th 708, 712). Thus, if one views “imposed” as unambiguous, the express language of section 1172.75 does not support the Attorney General’s interpretation of the statute as requiring both imposition and execution of a prior prison term enhancement as a prerequisite to obtaining resentencing relief. (Espino, supra, 104 Cal.App.5th at p. 197, rev. granted; People v. Mayberry (2024) 102 Cal.App.5th 665, 676.) Applying that understanding of the “imposed” language to a situation in which the punishment for a prison prior enhancement was stricken, a court does not impose a sentence enhancement finding. Rather, it imposes punishment for a sentence enhancement. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1125; People v. Espino (2024) 104 Cal.App.5th 188, 204 (dis. opn. of Lie, J.), review granted Oct. 23, 2024, S286987 (Espino).) Punishment cannot be stricken, unless it is first imposed. (See Merriam- Webster Dict. Online (2025) [as of Feb. 18, 2025] archived at: [defining “impose” as “to establish or apply by authority”]; Merriam-Webster Dict. Online (2025) [as of Feb. 18, 2025] archived at: [defining “strike” as “to delete something”].)

2 Here, the original sentencing court struck only the punishment for the enhancement and did not strike the enhancement itself. So, even though Velasquez was not subjected to prison time or the threat of prison time as a result of the prior prison term enhancement finding, the sentence enhancement was imposed for purposes of section 1172.75 resentencing eligibility. While the foregoing analysis is premised on the statute’s plain language being unambiguous and on a certain ordinary meaning of the word imposed, I would be remiss not to recognize People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius), and the Espino dissent. Both provide equally persuasive, supported, and well- reasoned argument for ascribing a different meaning to the word imposed, including cogent rationale that goes beyond the statutory language. (See Rhodius, at pp. 43–48, rev. granted; Espino, supra, 104 Cal.App.5th at pp. 202–204 (dis. opn. of Lie, J.), rev. granted.) Among other matters, the Espino dissent highlights the divergent positions held by the judiciary regarding whether an enhancement for which punishment was stricken may have potential future adverse consequences, such as restricting a defendant’s custody credits, and whether the Legislature intended section 1172.75 to neutralize any such potential collateral consequences. (Compare Espino, supra, 104 Cal.App.5th at p. 201, with id. at pp. 204–205 (dis. opn. of Lie, J.), rev. granted.) Relevant to those points, any defendant who previously served a term in prison will always have that prior prison term in their history. Thus, even if the finding and punishment for an enhancement based thereon is eliminated from a particular judgment, the prior prison term has the potential for negatively impacting them in the

3 future. (See, e.g., § 1170, subd. (b)(2) [court may impose sentence exceeding middle term of sentencing triad when “circumstances in aggravation” justify doing so]; Chavez Zapeda v. Superior Court (2023) 97 Cal.App.5th 65, 78 [“‘circumstances in aggravation’” in § 1170, subd. (b)(2), includes factors listed in Cal. Rules of Court, rule 4.421]; Cal. Rules of Court, rule 4.421 [prior prison term served by defendant is an aggravating circumstance].) Similarly, Rhodius brings to light the current fundamental disagreement among appellate courts regarding whether unexecuted punishment for a prison prior enhancement adds to a defendant’s sentence, such that elimination of all aspects of the enhancement will “result in a lesser sentence than the one originally imposed.” (§ 1172.75, subd. (d)(1); see, e.g., Espino, supra, 104 Cal.App.5th at p. 197, rev. granted; Christianson, supra, 97 Cal.App.5th at p. 312, rev. granted; Rhodius, supra, 97 Cal.App.5th at pp. 43–44, rev. granted.) In this regard, I respectfully disagree that an enhancement for which punishment was originally stricken can result in an additional term of imprisonment during a future resentencing. Roughly two years before the Legislature enacted section 1172.75, it amended section 667.5, subdivision (b), to narrow the availability of the one-year prison prior enhancement. (Stats. 2019, ch. 590, § 1.) The enhancement is now only available for prior prison terms for sexually violent offenses, which is the precise type of prison prior enhancement excluded from section 1172.75 resentencing eligibility. (§§ 667.5, subd. (b), 1172.75, subd. (a).) Accordingly, a court conducting a resentencing today could only “revive” a one-year prison prior enhancement for which punishment was previously stricken if the qualifying prior prison term was for a sexually violent offense. A court could not, now or in the future, impose punishment for a prison prior

4 enhancement that the Legislature makes unavailable at the time of a resentencing hearing. (See People v. Padilla (2022) 13 Cal.5th 152, 160–163 [new laws that mitigate punishment for offense generally are presumed to apply to cases not yet final, including when prior sentence is vacated for resentencing]; People v. Walker (2021) 67 Cal.App.5th 198, 205–206 & fn. 4 [except where barred by prohibition against ex post facto laws, trial court must apply law in effect at time of resentencing].) Where, as here, the use of statutory construction tools leads to two reasonable interpretations of the statute which completely counterbalance one another, the inescapable conclusion is the statute is ambiguous in such a manner, and to such an extent, that its meaning cannot be conclusively resolved by applying rules of statutory construction. Under these unique circumstances, the rule of lenity applies, and we must adopt the interpretation most favorable to Velasquez—that an imposed prison prior sentence enhancement triggers application of section 1172.75’s resentencing process, even if the original sentencing court ultimately struck the punishment. (See People v. Nuckles (2013) 56 Cal.4th 601, 611 [rule of lenity applies “‘“‘only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule’”’”]; Espino, supra, 104 Cal.App.5th at p. 201, rev. granted [rule of lenity would apply if section 1172.75 interpretations were equally strong on both sides].)

5 Because Velasquez’s judgment includes a prison prior sentence enhancement that was imposed prior to January 1, 2020, within the meaning of section 1172.75, I agree Velasquez is entitled to resentencing.

DELANEY, J.