Error and/or relief
The defendant appeals from the denial of resentencing relief pursuant to Penal Code section 1172.75. He contends, and the People agree, the resentencing court erroneously relied on a previously stricken enhancement for a sexually violent offense, as well as an unalleged prior conviction for a sexually violent offense in finding defendant ineligible for resentencing. The record establishes error. We therefore reverse and remand.
First Holding:
The trial court erroneously relied on prior felony convictions to determine that the defendant was not eligible for relief under section 1172.75, because those prior convictions had previously been stricken in the appeal from the original judgment, leaving no disqualifying prior convictions in place. Section 1172.75(a) invalidates 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.
However, a stricken enhancement cannot be a sentence enhancement that was imposed under section 1172.75(a). As noted, this court previously struck the otherwise-disqualifying section 667.5(b) enhancement stemming from defendant’s 1981 conviction. As such, it may not serve as the basis for denying resentencing relief under section 1172.75.
Authority:
PEN 667.5(b)
People v. Green (2024) 104 Cal.App.5th 365, 370
People v. Tang (2025) 109 Cal.App.5th 1003, 1007
Second Holding:
More than 30 years ago, defendant was convicted of both a disqualifying felony and robbery. However, for purposes of the current case, the prosecution only alleged a prior prison term enhancement for the 1990 robbery, not the disqualifying felony. The allegation was found true and the enhancement for the prior prison term stemming from the robbery was imposed. Because the enhancement was for robbery, the section 667.5(b) enhancement that became part of defendant’s sentence was not imposed for his conviction of a disqualifying offense as required by the plain terms of section 1172.75. Because a one-year prior prison term enhancement was not alleged, proved, or imposed for the 1990 conviction of an otherwise-disqualifying offense, it may not be used to deny defendant resentencing relief pursuant to section 1172.75.
Authority:
People v. Green (2024) 104 Cal.App.5th 365, 371
Third Holding:
In the appeal from the original judgment more than a decade ago, this court ordered defendant’s judgment modified to strike 10 of his 15 prior prison term enhancements and ordered the abstract of judgment amended to reflect the change. An amended abstract of judgment filed after the conclusion of that appeal reflected just such a change.
During the resentencing proceedings in the superior court in 2025, the court also addressed a motion by defendant to vacate his remaining restitution fines. The court granted defendant’s request pursuant to section 1465.9(b) and ordered the abstract of judgment amended. A new abstract of judgment issued in July 2025 reflected the change to defendant’s restitution; however, it also listed eight of the 10 previously stricken prior prison term enhancements. This is a clerical error. The abstract of judgment should list imposition of five 1-year enhancements—one on each count—for defendant’s prior prison term served in connection with his med-2000s petty theft conviction.
Authority:
People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time]
