People v. Lopez CA4/2

Filed 5/14/25 P. v. Lopez CA4/2

See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E082985

v. (Super.Ct.No. RIF1400906)

ANTHONY JACOB LOPEZ, OPINION

Defendant and Appellant.

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

Affirmed.

Jared G. Coleman, 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, Christopher P. Beesley and

Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.

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I.

INTRODUCTION

The trial court found defendant and appellant Anthony Jacob Lopez ineligible for

resentencing pursuant to Penal Code1 section 1172.75 because the sentencing

enhancement imposed for his having suffered a prior prison term (§ 667.5, subd. (b)) was

imposed and stricken during his initial sentencing proceedings.

On appeal, defendant contends trial courts must conduct full resentencing hearings

pursuant to section 1172.75 for every defendant whose prison sentence includes a prior

prison term enhancement under section 667.5, subdivision (b), regardless of whether the

enhancement was originally executed, stayed or stricken. We disagree. If the

punishment on a now-invalid prison prior was struck when the defendant was originally

sentenced, then the defendant is ineligible for resentencing under section 1172.75,

subdivision (d). Therefore, we affirm the trial court’s order denying the defendant’s

request for resentencing under section 1172.75.2

1 All future statutory references are to the Penal Code.

2 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 (Rhodius), review granted Feb. 21, 2024, S283169;

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.)

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II.

PROCEDURAL BACKGROUND3

In 2016, defendant pleaded guilty to voluntary manslaughter (§ 192, subd. (a)) and

assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) for the benefit

of a criminal street gang (§ 186.22, subd. (b)(1)(A)). Defendant also admitted to having

suffered a prior strike conviction (§§ 667, subds. (c) & (e)(1)), 1170.12, subds. (c)(1)), a

prior serious felony conviction (§ 667, subd. (a)(1)), and a prior prison term (§ 667.5,

subd. (b)). In accordance with the plea agreement, the trial court sentenced defendant to

25 years in state prison, dismissed the remaining charges, and struck the one-year

punishment for the prison prior. The abstracts of judgment noted that punishment for the

prison prior had been struck.

As of January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019,

ch. 590) amended section 667.5, subdivision (b), to eliminate sentence enhancements for

prior prison terms unless the prior terms were for sexually violent offenses. (Stats. 2019,

ch. 590, § 1; People v. Coddington (2023) 96 Ca1.App.5th 562, 567.) Two years later,

Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 728) added section 1172.75

(formerly § 1171.1) to provide a resentencing procedure that extends the elimination of

prior prison term enhancements (other than for sexually violent offenses) to all persons

currently incarcerated in jail or prison. (Stats. 2021, ch. 728, § 3.) The resentencing

procedure, set forth in section 1172.75, subdivision (d), requires the trial court to impose

3 The underlying factual background is not relevant to the issues raised on appeal.

We therefore dispense with a statement of facts.

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“a lesser sentence than the one originally imposed” unless the court finds by clear and

convincing evidence that doing so would endanger public safety. (§ 1172.75,

subd. (d)(1), (2).)

On December 29, 2023, the trial court declined to recall appellant’s sentence and

resentence him under section 1172.75. After the court considered the reasoning of this

court in Rhodius, supra, 97 Cal.App.5th 38 and the other appellate decisions on the issue,

the court denied defendant’s request for a full resentencing hearing, finding defendant to

be ineligible on the ground that the punishment for the prison prior had been struck at his

original sentencing. Defendant timely appealed.

III.

DISCUSSION

Defendant argues that the trial court erred by failing to conduct a full resentencing

hearing under subdivision (d) of section 1172.75 regardless of whether the enhancement

was initially stricken, and thus a remand is required for the court to conduct a full

resentencing. The People argue that because the punishment for the prison prior was

struck, defendant is not entitled to resentencing under section 1172.75. We agree with

the People.

“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to

impose a one-year sentence enhancement for each true finding on an allegation the

defendant had served a separate prior prison term and had not remained free of custody

for at least five years.” (People v. Burgess (2022) 86 Cal.App.5th 375, 379-380.) On

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January 1, 2020, after defendant’s sentencing hearing, Senate Bill No. 136 (2019-2020

Reg. Sess.) (Stats. 2019, ch. 590) amended section 667.5, subdivision (b) to allow for the

imposition of a one-year prior prison term enhancement only for prior convictions based

upon specified sexually violent offenses. (Stats. 2019, ch. 590, § 1.)

In 2022, the Legislature enacted Senate Bill No. 483, establishing a recall and

resentencing procedure for any person serving a term of incarceration, whose sentences

included an invalid prior prison term enhancement. (See § 1172.75, subd. (c).) The

resentencing process begins with corrections officials notifying the court that an

incarcerated person is serving a term for a judgment that includes an invalid

section 667.5, subdivision (b) enhancement. (See § 1172.75, subd. (b).) It is well-settled

that neither a defendant nor someone acting upon the defendant’s behalf can seek recall

for resentencing by filing a motion or petition. (People v. Cota (2023) 97 Cal.App.5th

318, 332 [“section 1172.75 does not authorize a defendant to seek resentencing on his or

her own motion or petition”].)

Section 1172.75 establishes a deadline under which the secretary of the California

Department of Corrections and Rehabilitation (CDCR) and county correctional

administrators must identify persons in custody serving sentences that include an

enhancement under section 667.5. First, “[b]y March 1, 2022, for individuals who have

served their base term and any other enhancements and are currently serving a sentence

based on the [affected] enhancement.” And second, “[b]y July 1, 2022, for all other

individuals.” (§ 1172.75, subd. (b)(1),(2).) Resentencing for the “priority” group was

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statutorily required to occur by October 1, 2022, and “[b]y December 31, 2023, for all

other individuals.” (§ 1172.75, subd. (c)(1), (2).)

The Legislature made this change retroactive by adding section 1171.1

(Stats. 2021, ch. 728, § 3), which was later renumbered 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).)

Section 1172.75, subdivision (d), describes the resentencing procedure. The

resentencing “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 by clear and

convincing evidence that imposing a lesser sentence would endanger public safety.”

(§ 1172.75, subd. (d)(1).)

Our appellate courts are currently split on whether the word “imposed” in

subdivision (a) of section 1172.75 applies only to enhancements that were imposed and

executed or also applies to those that were imposed and stayed. By granting review of

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Rhodius, supra, 97 Cal.App.5th 38, the Supreme Court has agreed to resolve the

“imposition” issue.

In Rhodius, supra, 97 Ca1.App.5th 38, this court held that “imposed” must be

interpreted as shorthand for “imposed and executed” 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 as a result of the elimination of the

repealed enhancement.” (Rhodius, at p. 43.) Reasoning 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.) we concluded that if section 1172.75

applied to stayed prior prison term enhancements, then a resentencing court faced with

such an enhancement would be required to “arbitrarily lower” the defendant’s sentence to

comply with the “lesser sentence” requirement. (Rhodius, at p. 44.) Because the

Legislature presumably did not intend such an outcome, this court held that

section 1172.75 must be construed to apply only to prior prison term enhancements that

were imposed and executed. (Rhodius, at p. 44.)

The rest of the appellate decisions to consider the issue have concluded that

section 1172.75 applies regardless of whether the prior prison term enhancement was

executed or stayed. (People v. Renteria (2023) 96 Ca1.App.5th 1276; Christianson,

supra, 97 Ca1.App.5th 300; Saldana, supra, 97 Ca1.App.5th 1270; People v. Mayberry

(2024) 102 Ca1.App.5th 665, review granted Aug. 14, 2024, S285853 (Mayberry).)

Christianson, Saldana, and Mayberry reasoned that Rhodius’s concern about applying

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section 1172.75 to stayed enhancements was unfounded, because striking a stayed

enhancement does result in a “lesser” sentence within the meaning of section 1172.75,

subdivision (d)(1). As Christianson explained, 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, at p. 312.) Striking a stayed enhancement reduces

the defendant’s sentence, because it eliminates the risk that the enhancement will be

executed in the future. (Ibid.; see Saldana, at p. 1277; Mayberry, at pp. 674-675

[“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 prior prison term

enhancement, because striking the stayed enhancement is sufficient to satisfy the “lesser

sentence” mandate of section 1172.75, subdivision (d)(1). (Christianson, at p. 312;

Saldana, at p. 1278; Mayberry, at pp. 674-675.)

Defendant argues that the trial court was required to resentence him pursuant to

subdivision (d) of section 1172.75, because the plain language of section 1172.75 does

not limit its application to cases wherein the prison priors were imposed and executed but

also applies to stayed or stricken prison priors as they remain a part of the judgment.

Defendant also asserts that the legislative history of Senate Bill No. 483 indicates the

Legislature intended section 1172.75 to apply broadly. The People counter that because

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the punishments on the prison priors were struck, the reasoning of Rhodius applies. We

agree with the People.

As Christianson pointed out, “[w]hen a punishment is stayed, as opposed to

stricken, 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 Ca1.App.5th at p. 312.) But when the sentencing court struck the punishment

for defendant’s prison priors, the court eliminated any possibility that those prison prior

enhancements could be executed, even if an alternatively imposed term was later

invalidated. (See Ibid.; see also People v. Brewer (2014) 225 Ca1.App.4th 98, 104, 106.)

Resentencing defendant pursuant to subdivision (d) of section 1172.75 under such

circumstances would therefore have forced the court to arbitrarily lower his sentence to

comply with the “lesser sentence” requirement (§ 1172.75, subd. (d)), because the

striking of a prison prior enhancement for which the punishment had already been struck

would not by itself result in a lesser sentence. (See Rhodius, supra, 97 Ca1.App.5th at

p. 44, review granted.) We agree with Rhodius that the Legislature did not intend such a

result.

In the present case, the record clearly shows punishment for the prior prison term

enhancement was stricken, not stayed. At the original sentencing hearing, the trial court

struck defendant’s punishment for the prison prior.

In People v. Espino (2024) 104 Cal.App.5th 188 (Espino), review granted

October 23, 2024, S286987, the Sixth District Court of Appeal held that the term

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“ ‘impose[d]’ ” as used in section 1172.75 also included prior prison term enhancements

for which punishment had been stricken. Espino held that defendants with stricken

punishment for prior prison term enhancements are entitled to full resentencing,

reasoning that the Legislature intended the phrase “ ‘[a]ny sentence enhancement’ ” in

section 1172.75 to be applied broadly, whether the punishment was executed, stayed or

stricken. (Espino, at pp. 196-197.) The majority saw no reason to distinguish between

prison prior enhancements that were imposed but stayed and those that were imposed but

the punishment stricken. (Id. at p. 193 [“section 1172.75 should be interpreted to apply

whenever a prison prior was imposed, whether punishment was executed, stayed, or

struck”].) The dissent, however, found “the concept of a sentence enhancement being

‘imposed’ when its punishment was stricken” incomprehensible, and the dissent further

observed that “[f]or enhancements, the California Supreme Court has identified two

potential meanings of ‘impose’: ‘[T]he word “impose” [can apply] to enhancements that

are “imposed and then executed” as well as those that are “imposed and then stayed.”’

[Citation.]” (Id. at p. 203 (dis. opn. of Lie, J.).) The dissent also echoes Rhodius’s

concern that the Legislature presumably did not intend to force resentencing courts to

arbitrarily lower sentences, noting that “eliminating an enhancement for which the court

had already stricken the punishment” does not, by itself, result in a lesser sentence.

(Espino, at p. 203, fn. 2 (dis. opn. of Lie, J.).) The majority opinion does not address that

issue. On balance, we find the Espino dissent more persuasive than the majority opinion.

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We disagree with the majority’s holding in Espino. Because punishment for the

prison prior enhancement in this case was stricken, it was not imposed and executed, the

section 1172.75 requirement for a resentencing hearing does not apply. In fact, since

punishment for the enhancement was previously stricken, there was nothing more the

trial court could do to eliminate punishment for the enhancement and impose a lesser

sentence. (§ 1172.75, subd. (d)(1).)

Based on the foregoing reasons, we conclude that section 1172.75 does not apply

to defendant’s prior prison term enhancement that was imposed and stricken and that he

therefore is not entitled to resentencing under subdivision (d) of the statute.

IV.

DISPOSITION

The trial court’s order finding defendant ineligible for resentencing under

section 1172.75 is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

I concur:

McKINSTER

Acting P. J.

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[People v. Lopez, E082985]

RAPHAEL, J., dissenting.

I respectfully dissent, as I would follow People v. Espino (2024) 104

Cal.App.5th 188, review granted Oct. 23, 2024, S286987 and hold that a prison prior

enhancement imposed in a judgment qualifies a defendant for resentencing under

Penal Code section 1172.75 even if the trial court struck the one-year punishment on

the enhancement.1

The text of section 1172.75 encompasses such an enhancement.

Section 1172.75, subdivision (a), invalidates any prison prior enhancement “imposed”

before 2020, excluding only those for sexually violent offenses. It contains no other

exclusion. Even the majority refers to defendant Anthony Jacob Lopez’s

enhancement as “imposed.” (Maj. opn., ante, at p. 10 [“imposed but the punishment

stricken”].) This is consistent with normal usage. (See, e.g., People v. Boukes (2022)

83 Cal.App.5th 937, 939 [trial court “imposed, but struck punishment on the gang

enhancements”], review granted Dec. 14, 2022, S277103.) Under the terms of the

statute, then, the enhancement is invalid, and Lopez qualifies for a resentencing

without the enhancement, as section 1172.75 provides in its subdivisions (c) and (d).

It is reasonable for the majority to consider whether there is some reason not to

apply the statute’s invalidation provision in this straightforward manner. But in doing

so, the majority fails to recognize that the enhancement was imposed in a manner

1 Undesignated statutory citations are to the Penal Code.

1

authorized by our state’s sentencing statutes. Instead, the majority opinion appears to

endorse a view that imposing an enhancement while striking its punishment is

“incomprehensible.” (Maj. opn., ante, at p. 10.) Were that true, it could support the

majority’s decision to depart from the statutory text. After all, an incomprehensible

sentencing enhancement might be invalid, such that it could be removed from a

judgment even without section 1172.75. But our sentencing laws in fact authorized

imposition of the enhancement. Because, as I will explain, the enhancement’s

imposition was authorized for penological purposes, it makes sense that the

enhancement was “imposed” like any other and invalidated by section 1172.75.

At sentencing, the Penal Code permits a court to “strike or dismiss” an

enhancement entirely. (§ 1385, subds. (a), (b).) If a court does that, the enhancement

is not “imposed.” It would not appear in the defendant’s abstract of judgment and

would not qualify the defendant for recall-and-resentencing. The Secretary of the

Department of Corrections would not even identify the defendant as a person covered

by section 1172.75. (See § 1172.75, subds. (a), (b).)

Rather than strike the enhancement, though, the Penal Code allows a court

to “instead strike the additional punishment for that enhancement in the

furtherance of justice.” (§ 1385, subd. (b)(1).) As mentioned above, this is

typically described as imposing the enhancement but striking the punishment.

(E.g., People v. Hall (2024) 104 Cal.App.5th 1077, 1088.) A trial court that does

this chooses to impose the enhancement even though it could strike it. State law

2

guides judges in making that choice. California Rules of Court, rule 4.428,

entitled “[f]actors affecting imposition of enhancements,” provides factors for the

court’s decision to impose the enhancement but strike the punishment: “In

determining whether to strike the entire enhancement or only the punishment for

the enhancement, the court may consider the effect that striking the enhancement

would have on the status of the crime as a strike, the accurate reflection of the

defendant's criminal conduct on his or her record, the effect it may have on the

award of custody credits, and any other relevant consideration.” (Cal. Rules of

Court, rule 4.428(b); see In re Pacheco (2007) 155 Cal.App.4th 1439, 1444-1445

[finding consequences from an enhancement because even though the punishment

was struck the “fact of the enhancement . . . remained” and listing various

consequences that could result from such an enhancement].)

So when a trial court chooses not to strike an enhancement, but to impose an

enhancement and strike its punishment, it is making a choice authorized in the

statutory scheme. That is, to achieve penological purposes, the law authorizes trial

courts to impose enhancements but strike the punishment. Because this is a formal

part of California sentencing, it makes sense that these enhancements are invalidated

by the language in section 1172.75, subdivision (a). It does not make sense for us to

exclude them. To be sure, most defendants face little, if any, effect from an imposed

enhancement where the punishment was struck. But where the imposition of an

enhancement is a trial court decision that formally serves sentencing purposes, even if

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slight, it makes sense to infer that the Legislature intended to include that

enhancement within a law that retroactively eliminates the enhancement from

judgments. Once one recognizes that Lopez’s enhancement is invalidated by

section 1172.75, subdivision (a), the statutory relief he qualifies for is a resentencing

under subdivisions (c) and (d), not the striking of his enhancement.

RAPHAEL

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