Error and/or relief
The defendant sought relief under section 1172.75 by filing a petition for writ of habeas corpus. The trial court reviewed the petition, struck the two now-invalid prior prison term enhancements and denied the request for resentencing, concluding that the previously entered judgment was final. It did not appoint counsel, there was no full resentencing, and the defendant was not present for the decision.
The court erred. The judgment is reversed with the direction to the trial court to appoint counsel for the defendant and to conduct a full resentencing hearing under Penal Code section 1172.75.
First Holding:
Before January 1, 2020, section 667.5(b) required courts to impose a one-year sentence enhancement for each prior prison or county jail term the defendant served if the defendant had not remained free of custody for the preceding five years. Effective January 1, 2020, SB 136 amended section 667.5(b) by limiting the enhancement to prior prison terms for sexually violent offenses only.
In 2021, the Legislature enacted Senate Bill No. 483, which made SB 136’s changes to the law retroactive, and added what is now section 1172.75. Section 1172.75(a), provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.
Section 1172.75(c) sets forth procedures for the trial court to recall sentences that include the now invalid enhancements and to resentence the defendants.
Authority:
PEN 1172.75
People v. Jennings (2019) 42 Cal.App.5th 664, 681
Second Holding:
When a defendant is being resentenced under section 1172.75, a resentencing 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.
At resentencing, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
The court shall appoint counsel to represent a defendant at resentencing proceedings.
Authority:
PEN 1172.75(d)(2), (d)(3), (d)(5)
Third Holding:
The Sixth and Fourteenth Amendments of the federal Constitution guarantee a criminal defendant the right to be at all critical stages of the proceeding, including sentencing and resentencing.
Authority:
People v. Velasco (2023) 97 Cal.App.5th 663, 673
Fourth Holding:
Other than to strike the one-year prison priors, the trial court declined to conduct a full resentencing, believing it could not do so because the judgment was final. However, section 1172.75, including subdivision (d)(2), applies retroactively to final judgments like the defendant’s.
Because the statute mandates striking the now invalid enhancements, the statute by its express terms—backed by supportive case law—also requires that defendant receive a full resentencing.
Thus, the trial court had jurisdiction and the duty to reconsider the entirety of the defendant’s sentence, not just the one-year prison priors.
Authority:
People v. Saldana (2023) 97 Cal.App.5th 1270, 1276