People v. Wilson CA4/2

Opinion

See Dissenting Opinion

Filed 12/9/24 P. v. Wilson CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082943

v. (Super. Ct. No. RIF1700124)

DARIN KRISTOPHER WILSON, OPINION

Defendant and Appellant.

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

Reversed and remanded with directions.

William Paul Melcher, 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, Alana Butler, and Daniel Rogers,

Deputy Attorneys General, for Plaintiff and Respondent.

1 I.

INTRODUCTION

The trial court found defendant and appellant Darin Kristopher Wilson ineligible 1 for resentencing pursuant to Penal Code section 1172.75 because the sentencing

enhancements imposed for his having suffered three prior prison terms (§ 667.5, subd.

(b)) were imposed and stayed during his initial sentencing proceedings.

On appeal, defendant contends he is entitled to a full resentencing hearing

pursuant to section 1172.75, even though his prison priors (§ 667.5, subd. (b)) were

imposed and stayed. We agree that defendant is entitled to sentencing relief under section

1172.75 for his prior prison term enhancements which were imposed and stayed. We

therefore reverse the order and remand for the trial court to recall defendant’s sentence,

vacate his prison prior enhancements, and resentence him under section 1172.75,

subdivision (d).

II. 2 PROCEDURAL BACKGROUND

On April 12, 2017, a jury convicted defendant of one count of robbery (§ 211). In

a bifurcated proceeding, defendant admitted that he had suffered three prior prison terms

(§ 667.5, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)), and a prior strike

1 Unless otherwise indicated, all future statutory references are to the Penal Code. 2 The underlying factual background is not relevant to the issues raised on appeal. We therefore dispense with a statement of facts.

2 conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to

a total term of nine years in state prison: the low term of four years (two years doubled

due to the prior strike) for the robbery, plus five years for the prior serious felony

enhancement. The court also imposed and stayed the one-year terms for the three prior

prison term enhancements. This court later affirmed defendant’s judgment. (People v.

Wilson (Nov. 13, 2018, E068578) [nonpub. opn].)

In 2023, the California Department of Corrections and Rehabilitation notified the

trial court of defendant’s eligibility to recall his sentence and to be resentenced pursuant

to section 1172.75. On December 27, 2023, the trial court declined to recall defendant’s

sentence and resentence him under section 1172.75 because the sentences on the prior

prison term enhancements had been imposed and stayed. Defendant timely appealed.

III.

DISCUSSION

Defendant argues he is entitled to a full resentencing hearing pursuant to section

1172.75 regardless of whether the prior prison term enhancements were imposed and 3 stayed. Relying on our decision in Rhodius, supra, 97 Cal.App.5th 38, the People

respond defendant is not entitled to a full resentencing hearing because section 1172.75

3 The question of whether section 1172.75 applies to prior prison terms which were imposed and stayed is currently pending before our Supreme Court. (See People v. Rhodius (2023) 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169 (Rhodius); People v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted Mar. 12, 2024, S283547; People v. Christianson (2023) 97 Cal.App.5th 300 (Christianson), review granted Feb. 21, 2024, S283189.

3 does not apply to an imposed and stayed section 667.5, subdivision (b) prior prison

enhancement.

Before January 2020, section 667.5, subdivision (b) permitted enhancements for

any prior prison term for a felony. (Stats. 2018, ch. 423, § 65.) Effective January 1,

2020, the Legislature amended subdivision (b) to limit prior prison term enhancements to

sexually violent offenses. (Stats. 2019, ch. 590, § 1.) The Legislature made this change

retroactive by adding section 1171.1 (Stats. 2021, ch. 728, § 3), which was later

renumbered to section 1172.75 without substantive change. (Stats. 2022, ch. 58, § 12.)

Under section 1172.75, “[a]ny sentence enhancement that was imposed prior to

January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5,” except for enhancements

for certain sexually violent offenses, “is legally invalid.” (§ 1172.75, subd. (a).) Section

1172.75 also provides that, if a prior prison term enhancement becomes invalid under the

section, a trial court “shall recall the sentence and resentence the defendant” (§ 1172.75,

subd. (c)), and, in doing so, “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).)

4 In Rhodius, supra, 97 Cal.App.5th 38, review granted, this court held that the

section 1172.75 resentencing provision does not apply when the trial court imposes and

stays a prison prior enhancement. Defendant urges this court to reject Rhodius, and

follow Christianson, People v. Renteria (2023) 96 Cal.App.5th 1276 (Renteria), and

Saldana, which concluded the converse. He argues that subsequent decisions by other

appellate courts hold, to the contrary, that section 1172.75, as amended by Senate Bill

No. 136 (2019-2020 Reg. Sess.) and Senate Bill No. 483 (Reg. Sess. 2021-2022), broadly

applies to enhancements imposed and stayed, such as in the instant case. The other

appellate courts focus primarily on the meaning of the term “imposed,” within the

meaning of section 1172.75, subdivision (a). (See Renteria, supra, at p. 1282 [the word

““‘impose” applies to enhancements that are “imposed and then executed,” as well as

those that are “imposed and then stayed”’”]; Christianson, supra, 97 Cal.App.5th at p.

305, review granted; Saldana, supra, 97 Cal.App.5th at p. 1276, review granted; People

v. Mayberry (2024) 102 Cal.App.5th 665 (Mayberry), review granted Aug. 14, 2024,

S285853.)

By granting review of Rhodius, supra, 97 Cal.App.5th 38, the Supreme Court has

agreed to resolve the “imposition” issue. In Rhodius, supra, 97 Cal.App.5th 38, our court

construed the term “imposed,” within the meaning of section 1172.75, subdivision (a), as

being limited to a sentence being “imposed and executed.” We limited the meaning of

“imposed” in order to make sense of the requirement in section 1172.75, subdivision

(d)(1), that resentencing must result in “a lesser sentence than the one originally imposed

5 as a result [of] the elimination of the repealed enhancement.” (Rhodius, supra, at pp. 42-

45, review granted.) We reasoned that “[t]he only way for the repealed enhancement to

have increased the length of a sentence is for the enhancement to have been imposed and

executed.” (Id. at p. 44.) Therefore, if section 1172.75 applied to stayed prison prior

enhancements, then a resentencing court faced with such an enhancement would be

forced to “arbitrarily lower” the defendant’s sentence to comply with the “lesser

sentence” requirement. (Rhodius, supra, at p. 44.) To avoid that outcome, we held in

Rhodius that section 1172.75 must be construed to apply only to prison prior

enhancements that were imposed and executed, and not to stayed prison prior

enhancements. (Rhodius, supra, at p. 44.)

All other appellate decisions that have considered this issue were decided after

Rhodius, with the exception of Renteria, supra, 96 Cal.App.5th 1276. So far, all of the

published decisions, other than Rhodius, have concluded that section 1172.75 applies

regardless of whether the imposed prison prior enhancement was executed or stayed.

(Renteria, supra, 96 Cal.App.5th 1276; Christianson, supra, 97 Cal.App.5th 300, review

granted; Saldana, supra, 97 Cal.App.5th 1270, review granted; Mayberry, supra, 102

Cal.App.5th 665, review granted.) Christianson, Saldana, and Mayberry reasoned that

Rhodius’s refusal to apply section 1172.75 to stayed prison prior enhancements was

unfounded, because striking a stayed enhancement results in a “lesser” sentence within

the meaning of section 1172.75, subdivision (d)(1).

6 The court in Christianson explained that a stayed enhancement carries “the

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, review granted.)

Striking a stayed enhancement reduces the defendant’s sentence because it eliminates the

risk the sentencing court will execute the enhancement in the future. (Ibid.; see also

Saldana, supra, 97 Cal.App.5th at p. 1277, review granted; Mayberry, supra, 102

Cal.App.5th at pp. 674-67, review granted [“Imposed-but-stayed prior prison term

enhancements carry the possibility of execution,” and striking them “eliminates their

impact”].) Resentencing courts thus would not be required to arbitrarily lower a sentence

that included a stayed prison prior enhancement, because striking the enhancement is

sufficient to satisfy the “lesser sentence” mandate of section 1172.75, subdivision (d)(1).

(Christianson, supra, at p. 312; Saldana, supra, at p. 1277; Mayberry, supra, at p. 674.)

The term for a stayed enhancement does not become permanent until “the

defendant finishes serving the part of the sentence that has not been stayed.” (Cal. Rules

of Court, rule 4.447(a)(2).) Furthermore, a direct appeal is not the only circumstance in

which an alternately imposed term can be invalidated. As occurred with section 1172.75,

the Legislature sometimes enacts retroactive changes to sentencing laws. (See Saldana,

supra, 97 Cal.App.5th at p. 1278, review granted [“a stayed term or enhancement . . . is

part of the sentence and remains available if its execution becomes necessary and proper

for any legally sanctioned reason”].) Because defendant is still serving the sentence

7 imposed for his robbery conviction, his prison prior enhancements still “carry the

possibility of execution.” (Mayberry, supra, 102 Cal.App.5th at p. 674, review granted.)

Pending resolution and guidance by our Supreme Court of the split among the

appellate courts on this issue, we conclude that the other appellate courts’ compelling

reasoning raised after Rhodius was decided, persuasively supports applying section

1172.75 to all imposed prison prior enhancements, regardless of whether the

enhancements were stayed or executed. We also agree that striking a stayed enhancement

results in a lesser sentence. (Christianson, supra, 97 Cal.App.5th at pp. 312, 315, review

granted; Saldana, supra, 97 Cal.App.5th at p. 1277, review granted; Mayberry, supra,

102 Cal.App.5th at pp. 674-675, review granted.)

We recognize that this decision is inconsistent with this court’s previous decision

in Rhodius. Nevertheless, for the reasons stated above, we conclude contrary to Rhodius

that section 1172.75 applies to defendant’s stayed prison prior enhancement. As a result,

he is entitled to reversal of the trial court order denying sentencing relief and remand for

the trial court to recall his sentence, to vacate his prison prior enhancement, and

resentence him under section 1172.75, subdivision (d). (See People v. Monroe (2022) 85

Cal.App.5th 393, 402 [“[S]ection 1172.75 requires a full resentencing, not merely that the

trial court strike the newly ‘invalid’ enhancements.”].)

8 IV.

DISPOSITION

The trial court’s December 27, 2023 order finding defendant ineligible for

sentencing relief, including vacating his prior prison term enhancements and resentencing

him under section 1172.75, is reversed. The matter is remanded to the trial court with

directions to vacate defendant’s prior prison term enhancements, recall his sentence, and

resentence him under section 1172.75, subdivision (d).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

I concur:

MENETREZ J.

9 See Dissenting Opinion

[People v. Wilson, E082943]

I respectfully dissent. I would decide the case in accordance with this court’s

decision in People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21,

2024, S283169 (Rhodius) and affirm the judgment.

In Rhodius, supra, 97 Cal.App.5th 38, the sentencing court imposed but stayed the 4 punishment for two prison prior enhancements under Penal Code 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.”’ (Id., 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, this court held in Rhodius that section

1172.75, did not apply to it. (Rhodius, at pp. 45, 48-49.)

4 All further statutory references are to the Penal Code.

1 The fact that the enhancement might be used in a potential recall of resentence

does not add to the sentence imposed in this case. Section 1172.75 does not address any

collateral consequences of a prior prison term enhancement.

However, section 1172.75, states that that an enhancement imposed pursuant to

section 667.5 is “legally invalid.” (§ 1172.75, subd. (a).) Therefore, the court cannot just

stay or strike the punishment, but must vacate the enhancement itself. When the

enhancement itself is vacated, it should not appear on the abstract of judgment and should

not be subject to use in the future. “If a judge strikes the enhancement, it’s as if the fact

of the enhancement never existed—it will not remain on the defendant’s criminal record

nor will it affect them in any potential future sentencing.” (People v. Flores (2021) 63

Cal.App.5th 368, 383.) Although the court in this case correctly denied the section

1172.75 petition for a full resentencing, it should have clarified that the enhancement

itself was vacated pursuant to section 1172.75, and directed that the abstract of judgment

be corrected to remove the section 667.5 enhancement. (See e.g., People v. Morelos

(2022) 13 Cal.5th 722, 770.)

RAMIREZ P. J.