Case Information
*1 Filed 12/19/23
CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
(Yolo)
---- THE PEOPLE, C097966 Plaintiff and Respondent, (Super. Ct. No. CR20111630) v.
SILVERIO SALDANA,
Defendant and Appellant. APPEAL from a judgment of the Superior Court of Yolo County, Peter M. Williams and Paul K. Richardson, Judges. Sentence vacated and remanded for resentencing.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hoskans, Supervising Deputy Attorney General, Henry J. Valle, Deputy Attorney General, for Plaintiff and Respondent.
In 2013, a jury found defendant Silverio Saldana guilty of possession for sale of a controlled substance (Health & Saf. Code, § 11378) and he was sentenced to 25 years to life in state prison as a three strikes offender. At the time, the trial court imposed and stayed four prior prison term enhancements found true under Penal Code section 667.5, subdivision (b). 1 Defendant appealed, and we affirmed the judgment in People v. Saldana (Jan. 8, 2015, C074302) (nonpub. opn.). 2
Nearly a decade later, defense counsel moved to strike the four prior prison term
enhancements under section 1172.75 and requested a full resentencing under that statute
and
People v. Buycks
(2018)
On appeal, the parties initially agreed, as did we, that the trial court erred in failing to conduct a full resentencing after striking the prior prison term enhancements. We vacated the sentence and remanded for a full resentencing proceeding.
The Attorney General, representing the People, timely filed a petition for rehearing, indicating that the concession was presented in error, and informing this court that this same issue was pending in another appellate court with more extensive briefing. We granted rehearing and ordered supplemental briefing with the issues just brought to our attention in mind, asking the parties to brief the following questions:
1. Do any (or all) of the four stayed one-year prior prison term enhancements
at issue in this case constitute an unauthorized sentence? (See, inter alia,
People v.
Langston
(2004)
2 We granted the Attorney General’s motion to incorporate the record in People v. Saldana , C074302.
the meaning of section 667.5, [subd.](b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken”].)
2. Assuming the stayed enhancements constitute an unauthorized sentence, how (if at all) does the stayed enhancements’ status as unauthorized factor into the analysis of whether the trial court was required to conduct a full resentencing at the time of the enhancements’ striking pursuant to section 1172.75?
3. Setting aside their unauthorized nature, did the status of the enhancements as stayed affect defendant’s entitlement to a full resentencing under the relevant statute; in other words, is a defendant with a stayed section 667.5, subdivision (b) enhancement generally entitled to a full resentencing under section 1172.75?
We received and considered the parties’ briefing on these issues and reach the same conclusion as we did initially: that defendant is entitled to a full resentencing on remand. Because the trial court declined to provide a full resentencing, we vacate the sentence and remand.
In reaching this conclusion, we note that the case the Attorney General referenced in his rehearing petition was recently decided in a published opinion rejecting the Attorney General’s position, which we later discuss in more detail. (See People v. Christianson (Nov. 17, 2023, D081330) __ Cal.App.5th __ [2023 Cal.App. Lexis 888] ( Christianson ).)
Further, as of this writing, two additional cases on the issue of a defendant’s
entitlement to resentencing under section 1172.75 where the (now invalid) enhancements
were imposed and stayed have been published by our sister courts. In
People v. Renteria
(2023)
The Christianson court disagreed with Rhodius in a footnote; the Rhodius court did not mention Renteria .
Here, the Attorney General agrees that section 1172.75 applies to warrant striking the stayed enhancements but argues to limit the application of the statute to exclude the provision requiring a full resentencing. Alternatively, in oral argument the Attorney General’s representative also agreed with the holding of the Rhodius court. We disagree with these positions, as we explain post .
BACKGROUND
We omit a summary of the facts underlying defendant’s conviction because they are not relevant to the issue raised on appeal.
In January 2023, after the Department of Corrections and Rehabilitation had referred defendant to the trial court as having a judgment with one or more qualifying priors, defendant filed a motion for resentencing under section 1172.75, which provides in relevant part 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 as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” (§ 1172.75, subd. (a).) Defendant also requested that the trial court conduct a full resentencing hearing to revisit all its sentencing choices. The prosecution opposed the motion, arguing section 1172.75 did not apply to the stayed prior prison term enhancements.
At a hearing in February 2023, the trial court struck the previously stayed prior prison term enhancements (§ 1172.75, subd. (a)), but found that it was not permitted to conduct a full resentencing hearing under section 1172.75, subdivision (d). The court opined that striking a stayed enhancement did not trigger a reopening of sentencing as would an unstayed enhancement. Defendant timely appealed.
DISCUSSION
I
The Stayed Enhancements as Unauthorized
When defendant was originally sentenced in 2013, the trial court imposed and then
stayed the four one-year prior prison term enhancements found true under section 667.5,
subdivision (b).
3
Although never brought to the attention of the trial or appellate courts
prior to the instant appellate proceeding, the parties now agree, as do we, that the trial
court stayed the enhancements in error, resulting in an unauthorized sentence. (See
People v. Langston, supra,
Defendant argues the enhancements’ stayed status and the resulting illegality of the sentence does not affect his entitlement to a full resentencing following the enhancements’ striking. He reasons that “[b]ecause they still could have been imposed, improperly stayed enhancements [that] had not yet been corrected should be treated no differently than those for which sentence was not stayed.” The Attorney General agrees that “the unauthorized nature of [defendant’s] 2013 sentence does not affect the analysis of whether the trial court was required to conduct a full resentencing . . . at the time of striking the enhancements.”
Notably, the Attorney General does not disagree with the notion that the
enhancements, whether stayed or unstayed, are no longer valid pursuant to the changes in
the relevant law. And he agrees that “the trial court here correctly vacated the invalid
enhancements” in response to defendant’s request for resentencing under section
3
Although not necessarily dispositive to the issue presented here, we note that the
enhancements are reflected in the abstract of judgment, with their respective terms noted
as stayed. (See
Christianson, supra
, 2023 Cal.App. Lexis 888, pp. *9-*14;
Renteria,
supra
,
1172.75. However, the Attorney General also cites People v. Gonzales (2008) 43 Cal.4th 1118 ( Gonzales ) to argue that defendant “is not eligible for resentencing under section 1172.75 because no additional term of punishment was added at the time of sentencing.” (Italics added.) These positions, as defendant points out, are inconsistent. When considered together, they amount to an argument for partially applying section 1172.75 and its ameliorative effect to defendant solely because of the (improperly) stayed status of his enhancements. 4
As explained more fully below, we reject the Attorney General’s argument
regarding the limits of the new law, finding it unpersuasive. Either section 1172.75
applies to defendant or it does not. We agree with both parties as well as our sister courts
in
Renteria, supra
,
II
The Stayed Enhancements as Unexecuted
Section 1172.75 expressly provides that if a judgment includes a qualifying prior prison term enhancement, the trial court shall recall the sentence and resentence the defendant. (§ 1172.75, subd. (c).) At any such resentencing, the court 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).)
“By its plain terms, section 1172.75 requires a full resentencing, not merely that
the trial court strike the newly ‘invalid’ enhancements.” (
People v. Monroe
(2022)
Citing the 2008 case of
Gonzales, supra
,
“As the Supreme Court has observed, ‘it is important to understand that the word
“impose” applies to enhancements that are “imposed and then
executed
” as well as those
*8
that are “imposed and then
stayed.
” ’ ([
Gonzalez, supra,
] 43 Cal.4th [at p.] 1125.)”
(
Renteria, supra
,
Even were we to find ambiguity in the Legislature’s use of “imposed” in the non-
contradictory statutory scheme here, there appears another key difference between the
instant situation and that in
Gonzales
, where the court observed the Legislature’s stated
intent in passing the legislation at issue there was to ensure
lengthier
prison sentences for
firearm use. (
Gonzalez, supra
,
As observed by the appellate court in Christianson, supra , __ Cal.App.5th __ [2023 Cal.App. Lexis 888, pp. *18-*19]: “The 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.’ (Sen. Rules Com., Analysis of Sen. Bill No. 136 (2019–2020 Reg. Sess.), as amended Sept. 3, 2019, p. 5; see also Stats. 2021, ch. 728, § 1 [‘in order to ensure equal justice and address systemic racial bias in sentencing, it is the intent of the Legislature to retroactively apply . . . Senate Bill 136 . . . to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements’].) Consistent with that intent, the other provisions of the statute require that the trial court conduct a full resentencing for those defendants impacted by *9 the now invalid enhancement in light of all associated sentencing reform. Specifically, section 1172.75, subdivision (d)(2) requires the trial court to 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.’ Subdivision (d)(3) further permits the trial court to consider a broad range of postconviction factors ‘and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.’ (§ 1172.75, subd. (d)(3).) Thus, it appears the Legislature intended to provide broad relief to all defendants impacted by the now invalid section 667.5, subdivision (b) enhancements.”
Although the appellate court in Rhodius, supra , 97 Cal.App.5th at pages 41 to 43, repeatedly posits that defendants serving sentences with stayed enhancements will not be subject to a lesser sentence (as the Legislature intended) if their enhancements are stricken, we disagree. The presence of a stayed term or enhancement is not without significance; it is part of the sentence and remains available if its execution becomes necessary and proper for any legally sanctioned reason. “When 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, such as if an alternately imposed term is invalidated. . . . Thus, a stayed sentence enhancement remains as part of the judgment and continues to carry the potential for an increased sentence in certain circumstances, and removal of the stayed enhancement does provide some relief to the defendant by eliminating that potential.” ( Christianson, supra , 2023 Cal.App. Lexis 888, p. *16.)
The Attorney General’s remaining arguments conflate defendant’s eligibility for recall and resentencing under section 1172.75 with his eligibility for a full resentencing after his imposed enhancements are stricken. For example, the Attorney General repeatedly points out that released prisoners are not eligible for relief under the statute, so not every person who has a now invalid enhancement attached to their sentence is eligible for resentencing. While true, this is irrelevant to the argument that this incarcerated *10 defendant, who undisputedly has now invalid enhancements included in his conviction of record, is eligible for some relief (striking of the enhancements) but not for all relief (full resentencing) directed by the plain language of the statute and supporting case law, merely because his enhancements were (illegally) stayed. We see no authority for selectively applying the statute’s various requirements.
Defendant was entitled to a full resentencing under the terms of section 1172.75,
including the application of “any other changes in law that reduce sentences or provide
for judicial discretion . . . .” (§ 1172.75, subd. (d)(2).) To correct this error, we shall
remand for a full resentencing hearing. (
People v. Gutierrez
(2014)
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing consistent with section 1172.75 and all current sentencing statutes that apply to defendant.
/s/
Duarte, J.
We concur:
/s/
Earl, P. J.
/s/
Horst, J.
Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.