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C.A. Mandates Resentencing Even if Extra Time Stricken
Bromberg Says Full Hearing Allowing All New Sentencing Laws, Judicial Discretion to Apply Is Required Despite Fact That No Punishment Was Ordered on Now-Defunct Enhancement; Lie Dissents
By Kimber Cooley, Associate Editor
The Sixth District Court of Appeal has held that a full resentencing hearing is statutorily required in any case where a trial court imposed a now-defunct prior-prison enhancement even if any additional punishment on the allegation was stricken and the defendant is serving no extra time due to the imposition.
The decision builds on case law requiring a resentencing hearing where a sentence on the prior enhancement was imposed and stayed—meaning punishment could be imposed at a later date—as the court found that the statutory scheme only requires that the enhancement be “imposed” and does not require that the sentence be executed or stayed.
In 2019, the Legislature enacted Senate Bill 136, amending Penal Code §667.5(b) as of Jan. 1, 2020, to provide that the sentencing enhancements for prior prison terms apply only if the prior offense was a specified sexually violent offense. In 2022, the Legislature enacted Senate Bill 483—adding what is now Penal Code §1172.75—which outlines the procedures for resentencing.
The section provides that “[a]ny 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…is legally invalid.”
Sec. 1172.75 also requires the trial court to apply any changes in the law reducing sentences or providing judicial discretion at the resentencing hearing and provides that a lesser sentence must be imposed absent valid public safety concerns.
Petitioning for resentencing was Jack Espino, who in 2017 pled no contest to robbery, possession of a firearm, and dissuading a witness, as well as admitting to a one-year sentencing enhancement under Penal Code §667.5(b) for serving a prior prison term for vehicle theft. At the sentencing hearing, he was sentenced to 26 years and four months imprisonment and the court imposed the prison prior but struck any additional punishment.
Justice Daniel H. Bromberg wrote the opinion, filed Monday, reversing the denial of the resentencing request by Santa Clara Superior Court Judge William J. Monahan. Acting Presiding Justice Adrienne M. Grover joined in the opinion.
Bromberg said:
“Although no published decision appears to have addressed whether section 1172.75 requires resentencing where, as here, a prison prior was imposed but punishment was struck, a number have considered what the word ‘impose’ means in connection with prison priors that were imposed but stayed. Most have rejected the execution requirement…and instead interpreted the word ‘impose’ according to its ordinary meaning. We see no persuasive reason to take a different approach.”
Justice Cynthia C. Lie dissented, saying that “because I do not read the requirement of an ‘imposed’ sentence enhancement to be satisfied where the enhancing punishment was stricken, I respectfully dissent.”
Meaning of ‘Imposed’
Bromberg pointed out:
“Although section 1172.75, subdivision (a) states that ‘[a]ny sentence enhancement that was imposed’ for a prison prior for crimes other than sexually violent offenses is invalid, the Attorney General contends that section 1172.75 does not apply to all prison priors imposed for such crimes. Instead, the Attorney General contends that section 1172.75 applies only to prison priors that were both imposed and executed.”
The justice noted that most appellate courts have rejected any implied execution requirement in the context of cases where the sentences were imposed but stayed on the former §667.5(b) enhancements and found the reasoning in these decisions applicable to the present case.
He opined:
“We see no good reason to reject the weight of authority interpreting section 1172.75 and imply an execution requirement into the word ‘impose.’….[U]nder section 1172.75, subdivision (a), ‘[a]ny sentence enhancement that was imposed’ is naturally understood to mean any enhancement that the sentencing court included in a judgment, whether punishment for it was executed, stayed, or struck.”
Unequivocal Application
Bromberg noted that the statute contains no limiting language which would make it inapplicable to a sentence which was imposed but not executed. He wrote: “Section 1172.75…does not refer to imposition of a term of imprisonment….To the contrary, it refers to ‘[a]ny sentence enhancement that was imposed’…, which suggests that the Legislature intended to use the word ‘imposed’ in a broad sense….Thus, according to the Penal Code, a sentencing enhancement remains an enhancement even if the punishment for it was not executed, and nothing about the language accompanying the word ‘impose’ in section 1172.75 suggests that it was being used as a shorthand to refer to prison priors that were imposed and executed.”
He continued:
“[W]e find it unlikely that the Legislature silently intended to render only those prison priors that were imposed and executed legally invalid. The language of section 1172.75, subdivision (a) is unequivocal….If the Legislature had intended to exclude individuals with judgments including prison priors that were imposed but not executed, it likely would have done so expressly and unequivocally, not silently and ambiguously.”
The jurist said that “[w]e acknowledge that this result is somewhat counterintuitive and that the dissent’s reluctance to reach it is understandable,” but the fact that no additional time was imposed on the sentence did not foreclose the possibility that having the enhancement remain on the record may adversely affect the defendant in the future.
Lie’s Dissent
Lie pointed to the legislative intent behind §1172.75, as stated in an uncodified preamble to Senate Bill 483, and wrote:
“The Legislature in enacting Penal Code section 1172.75 announced, ‘[I]t is the intent of the Legislature to retroactively apply…Senate Bill [No.] 136 of the 2019…to all persons currently serving a term of incarceration…for these repealed sentence enhancements.’….I read the Legislature’s preamble to Senate Bill No. 483 as meaning that it intended to extend relief to people serving sentences that were, whether actually or at least theoretically, subject to an additional one-year term of incarceration for a prior prison term pleaded and proven under former section 667.5, subdivision (b)….”
Unpersuaded by any additional consequences of having the enhancement remain, she said:
“That the fact of the former section 667.5(b) enhancement remains on a defendant’s record after the associated punishment is stricken adds nothing to the sentence imposed. It detracts nothing from the availability of conduct credits under section 2933—unlike an enhancement for inflicting great bodily injury under section 12022.7, for example….And even if a now-invalid enhancement under former section 667.5(b) could be said to possess some unidentified potential to affect a future sentence or trigger another collateral consequence of some kind, this would be beyond the ambit of Senate Bill No. 483.”
She added: “[T]he Legislature knows how to craft retroactive relief more broadly….Here, it could have ended its statement of intent after “all persons currently serving a term of incarceration” or even ‘all persons.’ ”
The case is People v. Espino, 2024 S.O.S. 2760.
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