Filed 2/14/25 P. v. Varney CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082894 v. (Super. Ct. No. RIF110836) AUSTIN CARTER VARNEY, OPINION Defendant and Appellant.

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

Reversed and remanded with directions.

Siri Shetty, 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, Eric A. Swenson, and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION The trial court found defendant and appellant Austin Carter Varney ineligible for resentencing pursuant to Penal Code section 1172.75 because the sentencing enhancement imposed for his having suffered one prior prison term (§ 667.5, subd. (b)) was imposed and stayed during his initial sentencing proceedings.

On appeal, defendant contends he is entitled to a full resentencing hearing pursuant to section 1172.75, even though his prison priors (§ 667.5, subd. (b)) were imposed and stayed. We agree that defendant is entitled to sentencing relief under section 1172.75 for his prior prison term enhancement which were imposed and stayed. We therefore reverse the order and remand for the trial court to recall defendant’s sentence, vacate his prison prior enhancement, and resentence him under section 1172.75, subdivision (d).

II.

PROCEDURAL BACKGROUND In December 2004, an information was filed charging defendant with murder (§ 187, subd. (a); count 1); possession of a shotgun by a felon (§ 246.3; count 2); and possession of a short barreled shotgun (§12020, subd. (a); count 3). As to count 1, it was

All future statutory references are to the Penal Code. The underlying factual background is not relevant to the issues raised on appeal.

We therefore dispense with a statement of facts. alleged that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subd. (d)). The information also alleged defendant had served a prior prison term (§ 667.5, subd. (b)) and suffered a prior serious felony offense (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).

In May 2005, defendant pled guilty to possession of a firearm by a felon.

In June 2005, a jury convicted defendant of murder and possession of a short barreled shotgun. The court found the prior conviction allegations true.

In August 2005, defendant was sentenced to a determinate term of four years, plus a total indeterminate term of 75 years to life. The court imposed but stayed sentence on the prior prison and prior serious felony enhancement.

The California Department of Corrections and Rehabilitation (CDCR) later placed defendant on a resentencing list as being eligible for relief under section 1172.75. On December 27, 2023, the trial court held a hearing pursuant to sections 1172.7, subdivision (a) and 1172.75, subdivision (a). Following argument, the court denied defendant relief pursuant to People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius) and other case law from this court. The court determined defendant was ineligible for full resentencing because the sentence on the prior prison term enhancement had been imposed and stayed. After denying relief, the court ordered the stayed prior stricken from the judgment and ordered the clerk to issue an amended abstract of judgment. Defendant timely appealed.

III.

DISCUSSION Defendant argues he is entitled to a full resentencing hearing pursuant to section 1172.75 regardless of whether the prior prison term enhancement was imposed and stayed or imposed and executed. The People respond defendant is not entitled to a full resentencing hearing because section 1172.75 does not apply to an imposed and stayed section 667.5, subdivision (b) prior prison enhancement, and urge this court to follow the reasoning of our previous decision in Rhodius and affirm the order denying resentencing under section 1172.75.

Before January 2020, section 667.5, subdivision (b) permitted enhancements for any prior prison term for a felony. (Stats. 2018, ch. 423, § 65.) Effective January 1, 2020, the Legislature amended subdivision (b) to limit prior prison term enhancements to sexually violent offenses. (Stats. 2019, ch. 590, § 1.) The Legislature made this change retroactive by adding section 1171.1 (Stats. 2021, ch. 728, § 3), which was later renumbered to 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

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 Rhodius, supra, 97 Cal.App.5th 38, review granted; 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.

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).)

In Rhodius, supra, 97 Cal.App.5th 38, review granted, this court held that the section 1172.75 resentencing provision does not apply when the trial court imposes and stays a prison prior enhancement. Defendant urges this court to reject Rhodius, and follow Christianson and Saldana, which concluded the converse. He argues that subsequent decisions by other appellate courts hold, to the contrary, that section 1172.75, as amended by Senate Bill No. 136 (2019-2020 Reg. Sess.) and Senate Bill No. 483 (Reg. Sess. 2021-2022), broadly applies to enhancements imposed and stayed, such as in the instant case. The other appellate courts focus primarily on the meaning of the term “imposed,” within the meaning of section 1172.75, subdivision (a). (See People v. Renteria (2023) 96 Cal.App.5th 1276, 1282 [the word “‘impose’” applies to enhancements that are “‘“imposed and then executed,”’” as well as those that are “‘“imposed and then stayed”’”]; Christianson, supra, 97 Cal.App.5th at p. 305, review granted; Saldana, supra, 97 Cal.App.5th at p. 1276, review granted; People v. Mayberry (2024) 102 Cal.App.5th 665 (Mayberry), review granted Aug. 14, 2024, S285853.)

By granting review of Rhodius, supra, 97 Cal.App.5th 38, the Supreme Court has agreed to resolve the “imposition” issue. In Rhodius, supra, 97 Cal.App.5th 38, our court

construed the term “imposed,” within the meaning of section 1172.75, subdivision (a), as being limited to a sentence being “imposed and executed.” We so limited the meaning of “imposed” 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, supra, at pp. 42- 45, review granted.) We reasoned 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.) Therefore, if section 1172.75 applied to stayed prison prior enhancements, then a resentencing court faced with such an enhancement would be forced to “arbitrarily lower” the defendant’s sentence to comply with the “lesser sentence” requirement. (Rhodius, supra, at p. 44.) To avoid that outcome, we held in Rhodius that section 1172.75 must be construed to apply only to prison prior enhancements that were imposed and executed, and not to stayed prison prior enhancements. (Rhodius, supra, at p. 44.)

All other appellate decisions that have considered this issue were decided after Rhodius, with the exception of People v. Renteria, supra, 96 Cal.App.5th 1276. So far, all of the published decisions, other than Rhodius, have concluded that section 1172.75 applies regardless of whether the imposed prison prior enhancement was executed or stayed. (People v. Renteria, supra, 96 Cal.App.5th 1276; Christianson, supra, 97 Cal.App.5th 300, review granted; Saldana, supra, 97 Cal.App.5th 1270, review granted; Mayberry, supra, 102 Cal.App.5th 665, review granted.) Christianson, Saldana, and

Mayberry reasoned that Rhodius’s refusal to apply section 1172.75 to stayed prison prior enhancements was unfounded because striking a stayed enhancement results in a “lesser” sentence within the meaning of section 1172.75, subdivision (d)(1).

The court in Christianson explained that 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, supra, 97 Cal.App.5th at p. 312, review granted.)

Striking a stayed enhancement reduces the defendant’s sentence because it eliminates the risk the sentencing court will execute the enhancement in the future. (Ibid.; see also Saldana, supra, 97 Cal.App.5th at p. 1277, review granted; Mayberry, supra, 102 Cal.App.5th at p. 674, review granted [“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 prison prior enhancement, because striking the enhancement is sufficient to satisfy the “lesser sentence” mandate of section 1172.75, subdivision (d)(1). (Christianson, supra, at p. 312; Saldana, supra, at p. 1277; Mayberry, supra, at p. 674.)

The term for a stayed enhancement does not become permanent until “the defendant finishes serving the part of the sentence that has not been stayed.” (Cal. Rules of Court, rule 4.447(a)(2).) Furthermore, a direct appeal is not the only circumstance in which an alternately imposed term can be invalidated. As occurred with section 1172.75, the Legislature sometimes enacts retroactive changes to sentencing laws. (See Saldana,

supra, 97 Cal.App.5th at p. 1278, review granted [“a stayed term or enhancement . . . is part of the sentence and remains available if its execution becomes necessary and proper for any legally sanctioned reason”].) Because defendant is still serving the sentence imposed for his robbery and grand theft convictions, his prison prior enhancement still “carr[ies] the possibility of execution.” (Mayberry, supra, 102 Cal.App.5th at p. 674.)

Pending resolution and guidance by our Supreme Court of the split among the appellate courts on this issue, we conclude that the other appellate courts’ compelling reasoning raised after Rhodius was decided, persuasively supports applying section 1172.75 to all imposed prison prior enhancements, regardless of whether the enhancements were stayed or executed. We also agree that striking a stayed enhancement results in a lesser sentence. (Christianson, supra, 97 Cal.App.5th at pp. 312, 315, review granted; Saldana, supra, 97 Cal.App.5th at p. 1277, review granted; Mayberry, supra, Cal.App.5th at pp. 674-675.)

We recognize that this decision is inconsistent with this court’s previous decision in Rhodius. Nevertheless, for the reasons stated above, we conclude contrary to Rhodius that section 1172.75 applies to defendant’s stayed prison prior enhancement. As a result, he is entitled to reversal of the trial court order denying sentencing relief and remand for the trial court to recall his sentence, to vacate his prison prior enhancement, and resentence him under section 1172.75, subdivision (d). (See People v. Monroe (2022) 85 Cal.App.5th 393, 402 [“[S]ection 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.”].)

IV.

DISPOSITION The trial court’s December 2023 order finding defendant ineligible for sentencing relief, including vacating his prior prison enhancement and resentencing him under section 1172.75, is reversed. The matter is remanded to the trial court with directions to vacate defendant’s prior prison enhancement, recall his sentence, and resentence him under section 1172.75, subdivision (d).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

I concur:

RAPHAEL J.

[People v. Varney, E082894] McKINSTER, Acting P. J., dissenting: I continue to adhere to our decision in People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169. Christianson’s reasoning is, at least in some degree, flawed by its assertion that a prior prison term enhancement could be imposed at some point in the future. (People v. Christianson (2023) 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189.) Contrary to Christianson’s claim, punishment on the stayed enhancement could never subsequently be executed because the law has invalidated the imposition of punishment on the enhancement unless it was for a qualifying sexually violent offense, which does not here apply. (People v. Mayberry (2024) 102 Cal.App.5th 665, 676.) Indeed, it now requires that the enhancement be stricken. Thus, defendant was not entitled to a full resentencing hearing because he is no longer serving a term of judgment that includes a valid section 667.5, subdivision (b) enhancement, punishment on the enhancement could now never be imposed, and striking the enhancement would not result in a lesser sentence than the one originally imposed.

To interpret the law to apply to a person who was “lucky” enough to only have his enhancement stayed but not to someone who was “unfortunate” enough to have his enhancement completely stricken strains credulity. Therefore, I would affirm the order denying defendant a full resentencing hearing, but I would direct the court to strike the prior prison term enhancement.

McKINSTER Acting P. J.