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Mandatory Resentencing Law Applies to Stayed Sentences, C.A. Panel Says
Fifth District Declines to Follow Fourth District Precedent
By a MetNews Staff Writer
The Fifth District Court of Appeal has held that the resentencing provisions of Penal Code §1172.75—invalidating sentencing enhancements based on prior convictions resulting in prison sentences for crimes other than sexually violent offenses and requiring resentencing retroactively—apply to enhancements that have been imposed but stayed as they carry the possibility of future execution.
Acting Presiding Justice Jennifer R.S. Detjen authored the opinion, filed Tuesday, reversing an order denying resentencing by Fresno Superior Court Judge Houry A. Sanderson. Justices Kathleen Meehan and Mark W. Snauffer joined in the opinion.
Appealing the denial was Darryn Mayberry, who, in July 2018, pled no contest to second-degree robbery and admitted two strike priors and two prior-prison-term enhancements. At sentencing, Fresno Superior Court Judge David Gottlieb struck one strike, stayed the imposition of sentence on the two one-year prior-prison enhancements, and sentenced Mayberry to 10 years in prison.
Resentencing Hearing
In 2019, the Legislature enacted Senate Bill 136 which amended Penal Code §667.5(b) to provide that the mandatory sentencing enhancements for prior prison terms apply only if the prior offense was a specified sexually violent offense. Effective Jan. 1, 2020, §667.5(b) now provides:
“[I]f the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code….”
In 2021, the Legislature enacted Senate Bill 483, effective Jan. 1, 2022, which made clear the intent that the amendment applies retroactively and added §1171.1 to the Penal Code, since renumbered as §1172.75, which provides the procedures by which the retroactive application is to operate.
Pointlessness of Resentencing
Mayberry was identified by the Department of Corrections and Rehabilitation as an inmate eligible for resentencing, according to the procedures set forth in §1172.75. In March 2023, a resentencing eligibility hearing was conducted before Sanderson, who took issue with resentencing given the stay because he would be “eliminating nothing,” saying:
“[I]f I take nothing away, it is still the same number.”
Sanderson noted that although Mayberry “had prison priors added at the time of the original sentencing,” each of the enhancements was “improperly stayed,” commenting:
“[T]he time has long passed for any appeal on these illegal sentences. And therefore, the Court does not believe that it now has the ability to go back in time and do anything about those illegal sentences.”
Defendant’s Position
Detjen noted that the Mayberry agrees that the original sentence was unauthorized, wasn’t appealed, and is final, but asserts that §1172.75 still authorized Sanderson to resentence him.
The justice said that while that the prosecution is correct that a court generally lacks jurisdiction to modify the sentence once a judgment has been rendered and executed, “there are many important exceptions to this general rule” and “Section 1172.75 is one of these exceptions.”
Sec. 1172.75 provides in part:
“(a) Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, 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…..
“(d) 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….”
Fourth District Decision
The prosecution pointed to the 2023 decision by the Fourth District’s Div. Two in People v. Rhodius (in which review was granted by the California Supreme Court on Feb. 12, 2024). It holds that the resentencing scheme does not apply to sentences which had been imposed and stayed.
Relying on the language of the statute and legislative history, Acting Presiding Justice Art W. McKinster reasoned that the language in subd. (d)(1) requiring the resentencing to “result in a lesser sentence” means that §1172.75 does not operate to invalidate prior prison term enhancements that were imposed but stayed.
Detjen agreed that the language of the statute requires resentencing to result in a “lesser sentence” and that the legislative history makes clear that the intent was to lessen sentences, but said “[w]e disagree…with the conclusion in Rhodius that section 1172.75 does not invalidate prior prison term enhancements that were imposed and stayed.”
Possibility of Enhancement
The jurist said that “the Attorney General premises his position on the presupposition that section 667.5, former subdivision (b) enhancements that were imposed and stayed have no impact on defendant’s sentence.”
Rejecting that proposition, she wrote:
“Imposed-but-stayed prior prison term enhancements carry the possibility of execution…. That includes the two prior prison term enhancements originally imposed here.”
She opined:
“If ‘imposed’ in subdivision (a) of section 1172.75 is read to include stayed prior prison term enhancements, then striking them now as invalid eliminates their impact from the ‘originally imposed’ sentence referred to in section 1172.75, subdivision (d)(1) resulting in a ‘lesser sentence than the one originally imposed.’”
Detjen noted that while “imposing then staying the prior prison term enhancements in defendant’s sentence was unauthorized, staying prior prison term enhancements was not error in other sentencing situations” and said:
“Laws in existence when section 1172.75 was enacted allowed those sentence enhancements to be stayed under certain circumstances. Knowing this, if the Legislature intended for the language in subdivision (a) of section 1172.75 to limit legal invalidity to section 667.5, former subdivision (b) enhancements that were imposed and executed it could have done so. It did not.”
She declared:
“[D]efendant was entitled to, but did not receive, a recall of his sentence and 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’…and consideration of ‘postconviction factors’ militating against continued incarceration….”
The case is People v. Mayberry, 2024 S.O.S. 1784.
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