Filed 2/21/25 P. v. Cline CA4/2 See Dissenting Opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083060 v. (Super.Ct.No. RIF1404943) TIMOTHY ROBERT CLINE, OPINION Defendant and Appellant.

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

Affirmed with directions.

John F. Schuck, 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, A. Natasha Cortina, Kelley Johnson, and Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.

At a hearing pursuant to Penal Code section 1172.75,1 the court found defendant and appellant Timothy Robert Cline ineligible for a full resentencing hearing. On appeal, defendant contends this court should reverse the order and remand the matter to the trial court with directions to hold a full resentencing hearing. We affirm with directions.

I. PROCEDURAL BACKGROUND On September 23, 2016, a jury found defendant guilty of robbery in concert (§§ 211 & 213, subd. (a)(1)(A)), count 1), making a criminal threat (§ 422; count 2), and burglary (§ 459; count 3). The jury found true allegations that defendant personally used a firearm during the commission of all three offenses (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8), 12022.5, subd. (a)). Defendant thereafter admitted he had suffered seven prior prison terms (§ 667.5, subd. (b)) and a prior out-of-state conviction (§ 667, subd. (a)). (People v. Cline (Aug. 29, 2018, E068069) [nonpub. opn.] (Cline).)

The court found that the out-of-state conviction qualified as both a prior serious felony (§ 667, subd. (a)) and prior strike conviction (§ 1170.12, subd. (c)(1)). The court stayed punishment on the prior prison terms. The court thereafter sentenced defendant to state prison for 27 years. (Cline, supra, E068069.)

Defendant appealed. This court held insufficient evidence supported the court’s finding that the out-of-state conviction qualified as a prior serious felony and prior strike conviction. Thus, this court remanded the matter to the trial court to hold a new hearing on the prior out-of-state conviction and resentence defendant accordingly. In all other respects, this court affirmed the judgment. (Cline, supra, E068069.)

At the hearing on remand on January 25, 2019, the parties stipulated that the prior out-of-state conviction did not qualify as a prior serious felony or prior strike conviction.

Defense counsel argued the court had discretion to strike the allegations that defendant personally used a firearm during the commission of all three offenses. The court ruled, “Taking everything into consideration, particularly inclusive of any of the prior criminal history of the defendant, I will choose to, in the exercise of my discretion, not change my mind. It will remain as it was.”

The court resentenced defendant to 16 years of imprisonment. The court did not mention the prior prison terms when imposing judgment. Nonetheless, the resentencing minute order and new abstract of judgment reflect that the court imposed but stayed sentence on all seven prior prison terms.

On December 7, 2022, the People filed opposition to any resentencing of defendant pursuant to section 1172.75.2 The People argued that defendant was ineligible for a full resentencing hearing because he was not serving time for a prior prison term enhancement, no time could be legally imposed on any of the enhancements, resentencing on the enhancements would not reduce his sentence as required by statute, and that the court had previously declined to exercise its discretion to strike any of defendant’s gun enhancements.

After numerous continuances, on December 21, 2023, at a hearing at which counsel represented defendant, the court indicated that it had read and considered the decisions in People v. Rhodius (2023) 97 Cal.App.5th 38 (Rhodius), review granted February 21, 2024, S283169; People v. Renteria (2023) 96 Cal.App.5th 1276, 1282-1283 (Renteria); People v. Christianson (2023) 97 Cal.App.5th 300, 311 (Christianson), On November 14, 2022, the court appointed counsel for defendant in this matter. It is unclear from the record as originally filed how the matter initially came to the court’s attention. “[S]ection 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. [Citation.]” (People v. Cota (2023) 97 Cal.App.5th 318, 332; accord, People v. Newell (2023) 93 Cal.App.5th 265, 268; accord, People v. Burgess (2022) 86 Cal.App.5th 375, 382 [lower and appellate courts lack jurisdiction over a request for section 1172.5 relief brought solely by a defendant].) “Of course, ‘the defendant . . . bears the burden to provide a record on appeal which affirmatively shows that there was error below, and any uncertainty in the record must be resolved against the defendant.’ [Citation.]” (People v. Moore (2021) 68 Cal.App.5th 856, 866; ibid. [“Because appellant has failed to provide an adequate record for review, his claim fails. [Citation.]”].)

Here, this court satisfied defendant’s burden of producing a record that establishes the proceeding below was initiated by the CDCR. On our own motion, we took judicial notice of a CDCR list from another case, which identifies individuals eligible for section 1172.75 relief; defendant’s name appears on that list. review granted February 21, 2024, S283189; and People v. Saldana (2023) 97 Cal.App.5th 1270, 1275 (Saldana), review granted March 12, 2024, S283547. The court found defendant ineligible for resentencing and denied defendant’s “motion.” The court vacated the previous “sentence” on defendant’s prior prison terms, imposed a one-year sentence on each, and then struck punishment on the enhancements.3 II. DISCUSSION Defendant contends this court should reverse and remand the matter with directions to the trial court to hold a full resentencing hearing. The People maintain we should affirm the trial court’s order in reliance on Rhodius. We affirm with directions.

Senate Bill No. 483 (Senate Bill 483) (2021-2022 Reg. Sess.) added section 1171.1 to the Penal Code (Stats. 2021, ch. 728), which the Legislature subsequently renumbered, without substantive change, as section 1172.75 (Stats 2022, ch. 58, § 12, eff. June 30, 2022). (Rhodius, supra, 97 Cal.App.5th at p. 42 & fn. 4.)

“Section 1172.75, subdivision (a), states 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 . . . is legally invalid.’ [Citation.] Section 1172.75 instructs the CDCR to identify those persons in their custody currently serving a term for a judgment that includes an enhancement under section 667.5(b) (excluding sexually violent offenses) and provide such information to the sentencing court that imposed the enhancement. [Citation.]

Subsequently, the sentencing court ‘shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a).’ [Citation.] ‘If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant.’ [Citation.]” (Ibid.)

“Whether section 1172.75 entitles [defendant]—who is currently serving time on an abstract of judgment that includes a stayed but now invalid section 667.5, subdivision (b) enhancement—to a full resentencing is a question of law that we review de novo, under well-settled standards of statutory interpretation. [Citations.]” (Christianson, supra, 97 Cal.App.5th at p. 308.)

“Section 1172.75[,] subdivision (d)(1)’s requirement that the resentencing shall result in a lesser sentence than the one originally imposed necessitates the conclusion that the repealed enhancement increased the length of the sentence. The only way for the repealed enhancement to have increased the length of a sentence is for the enhancement to have been imposed and executed. If the repealed enhancement was imposed and stayed, the sentence would not have been increased, as was the case here. To interpret ‘imposed’ as used in section 1172.75, subdivision (a), to include when a sentence was ‘imposed and stayed’ would require any sentencing court faced with an ‘imposed and stayed’ enhancement to arbitrarily lower a sentence simply because the judgment contained a stayed enhancement.” (Rhodius, supra, 97 Cal.App.5th at p. 44; compare People v. Espino (2024) 104 Cal.App.5th 188, 203 (dis. opn. of Lie, J.) [“So the concept

of a sentence enhancement being ‘imposed’ when its punishment was stricken is not one I claim to comprehend.”], review granted Oct. 23, 2024, S286987; contra, Renteria, supra, Cal.App.5th at pp. 1282-1283 [defendant entitled to full resentencing hearing where section 667.5 enhancement was imposed and stayed]; accord, Christianson, supra, 97 Cal.App.5th at p. 316, fn. 8; accord, Saldana, supra, 97 Cal.App.5th at p. 1278; accord, People v. Mayberry (2024) 102 Cal.App.5th 665, 674 (Mayberry), review granted Aug. 14, 2024, S285853; accord, Espino, at p. 196; see People v. Gray (2024) 101 Cal.App.5th 148, 167 & fn. 14 [“Other courts to have considered this question have focused on the meaning of the term ‘imposed,’ and have disagreed with Rhodius.”].)

Here, like in Rhodius, the trial court imposed but stayed punishment on the prior prison term enhancements. Thus, since defendant was not serving a term of judgment which included a prior prison term enhancement and striking or vacating the prior prison term enhancement would not result in a lesser sentence than the one originally imposed as required by section 1172.75, subdivision (d)(1), the court properly denied defendant’s request for a full resentencing hearing. (Rhodius, supra, 97 Cal.App.5th at p. 44; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant effectively argues that we are not bound by Rhodius. However, “Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior decisions from another panel of the same undivided district or from the same division.” (Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9.) Rhodius is a decision of this appellate division.

Nonetheless, defendant essentially argues that the majority view of the appellate courts set forth in Renteria, Christianson, and Saldana comprise a compelling reason to depart from this court’s decision in Rhodius. We disagree.

In analyzing the legislative history of Senate Bill 483, this court in Rhodius observed that the Legislature was primarily concerned with providing relief to those who had served time on rulings deemed unfair, on separating inmates from their families, and on the costs to the state of incarceration. (Rhodius, supra, 97 Cal.App.5th at pp. 46-48.)

“The findings, costs, and ramifications of . . . Senate Bill 483 cited during the legislative sessions presuppose inmates who are serving additional time as a result of the sentencing enhancement under section 667.5(b). The references to financial and familial burdens do not logically follow if a defendant is not actually serving additional time as the result of an imposed and executed sentence associated with a section 667.5(b) prior. As such, to interpret the statute to include enhancements that were imposed and stayed would be contrary to the legislative intent and the plain language of the statute.” (Id. at pp. 48-49.)

Here, since the court did not execute sentence on the prior prison term enhancements, striking or vacating them as anything other than an administrative function would not promote the legislative concerns in passing Senate Bill 483; in other words, because defendant was not serving time on the enhancements, striking them would not provide a lessened term for defendant, would not enable him to reunify with his family, and would not result in any cost savings to the state. We continue to agree

with this court’s decision in Rhodius and disagree with the courts in Renteria, Christianson, Saldana, Mayberry, and Espino.

Moreover, Christianson inaccurately reasoned that a stayed prior prison term enhancement should be considered imposed because “the trial court retains the ability to lift the stay and impose the term under certain circumstances, such as if an alternately imposed term is invalidated.” (Christianson, supra, 97 Cal.App.5th at p. 312.) Contrary to Christianson’s assertion, a stayed or stricken enhancement could never subsequently be imposed because the legislature has since invalidated the imposition of punishment on the enhancements unless they were for a qualifying sexually violent offense. (Mayberry, supra, 102 Cal.App.5th at p. 676 [“It is clear from the plain language of subdivision (a) of section 1172.75 that the Legislature rendered sentence enhancements imposed pursuant to former subdivision (b) of section 667.5 legally invalid, except where imposed for a qualifying sexually violent offense.”]; Espino, supra, 104 Cal.App.5th at p. 204 (dis. opn. of Lie, J.) [“[E]ven if a now-invalid enhancement under former section 667.5(b) could be said to possess some unidentified potential to affect a future sentence or trigger another collateral consequence of some kind, this would be beyond the ambit of Senate Bill No. 483.”].)

Here, like in Christianson, none of the underlying convictions for defendant’s prior prison term enhancements were for sexually violent offenses. (Christianson, supra, Cal.App.5th at p. 311.) Thus, the enhancements could never be legally imposed.

Furthermore, to interpret the law to allow a full resentencing hearing for a person who was “lucky” enough to “only” have punishment on his enhancement stayed but not to someone who was “unfortunate” enough to have his enhancement completely stricken strains credulity. (People v. Hardin (2024) 15 Cal.5th 834, 847 [“[T]he requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.’ [Citation.]”].) In these circumstances, we see no functional difference between striking the punishment, staying the punishment, or striking the enhancement in its entirety.4 Therefore, the court properly denied defendant’s request for a full resentencing hearing.5 Neither of the parties on appeal discuss whether any error by the court in denying defendant a full resentencing hearing was harmless. We note that the resentencing court has already considered and rejected defense counsel’s argument that it should strike all the personal use enhancements. With respect to the section 1172.6 proceedings thereafter, the People below argued, in part, that any resentencing hearing would be pointless because the court had sentenced defendant to the presumptive midterm and had already declined to strike the personal use enhancements. Thus, we observe, without deciding, that any error may have been harmless. (See People v. Lewis (2021) 11 Cal.5th 952, 957-958, 973-975 [The deprivation of a defendant’s right to counsel at a section 1172.6 hearing is state law error only, tested for prejudice as to whether there was reasonable probability in the absence of error the defendant would have obtained a more favorable result.].)

III. DISPOSITION The trial court is directed to strike or vacate the section 667.5, subdivision (b) enhancements in their entirety, rather than merely the punishment on the enhancements.

The court is further directed to issue a new minute order reflecting the court’s order. The court is directed to forward a copy of the new minute order to the CDCR. The court’s order is otherwise affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS McKINSTER Acting P. J.

I concur: CODRINGTON J.

word “strike.” It would be more precise and in keeping with the language in California Supreme Court opinions to state that the enhancement is “vacated.” (See, e.g., People v. Morelos (2022) 13 Cal.5th 722, 770.) If the enhancement itself is vacated, it should not appear on the abstract of judgment.

Here, the court reimposed sentence and struck punishment on the enhancement.

Although the new abstract of judgment no longer reflects the presence of the prior prison term, in abundance of caution, we direct the court below to strike or vacate the enhancement in its entirety. [People v. Cline, E083060] RAPHAEL, J., dissenting.

Penal Code section 1172.75, subdivision (a)1 declares legally invalid prison prior enhancements that were “imposed” before 2020. If a defendant has such an enhancement, the sentence is to be recalled and the defendant resentenced under current laws, which may be more lenient than those used originally.

Other section 1172.75 subdivisions tell us that an enhancement is “imposed” under subdivision (a) when the defendant has a “judgment that includes” such an enhancement. (§ 1172.75, subd. (b); see id. subd. (c) [“judgment includes an enhancement described in subdivision (a)”].)

Despite that statutory text, the majority concludes that “imposed” in subdivision (a) means “imposed and executed.” (Maj. opn., ante, at p. 6.) Consequently, because Timothy Robert Cline’s prison prior enhancements were “imposed and stayed,” the majority denies him the resentencing that he would receive if they were executed.

The majority’s textual basis for its conclusion is a single phrase in the resentencing provision, subdivision (d)(1), which requires a “lesser sentence” upon resentencing. (Maj. opn., ante, at p. 6.) As described in Section I, below, the whole statute’s text shows that “imposed” encompasses any qualifying prison priors that were imposed, regardless of whether their punishment was stayed. The section explains why the term “lesser sentence,” if anything, undermines the majority’s view.

1 Undesignated statutory citations in this dissent refer to the Penal Code.

The majority, moreover, does not even allude to the express purpose of section 1172.75’s resentencing provisions: to apply other new sentencing laws to eliminate disparities and promote uniformity. Creating a disparity with those granted this benefit, the majority denies Cline resentencing for the sole reason that his sentencing judge stayed the punishment on his enhancements. Today’s opinion thereby undermines the purposes articulated in the statute.

We need not rely on legislative history, but section II below will explain how the majority misapprehends the legislative intent by omitting the history of the resentencing provisions from its consideration of the statute’s history. Section III below will explain that the majority’s disposition, directing the trial court to strike Cline’s enhancements, lacks authority. The Legislature has authorized recall and resentencing, not striking enhancements.

I Legislation effective in 2020 prospectively abolished most prior prison enhancements that had been imposed under section 667.5, subdivision (b). (Senate Bill No. 136 (2019-2020 Reg. Sess.); Stats 2019, ch. 590.) Our Legislature made that abolition retroactive in 2022, through Senate Bill No. 483 ((2021-2022 Reg. Sess.); Stats 2021, ch. 728), which enacted section 1171.1, later re-numbered as section 1172.75.

The first subdivision of this section contains the word “imposed” at issue here. It declares invalid almost any prior prison enhancement that had been imposed before the enhancements were abolished. That subdivision contains just one exception, for

defendants convicted of sexually violent offenses. It states: “[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 . . . is legally invalid.” (§ 1172.75, subd. (a) [italics added].)

Subdivision (a) contains no exception for enhancements that were imposed and stayed. (§ 1172.75, subd. (a).) When we interpret a statute, we are to start with the usual and ordinary meaning of its terms in the statutory context. (E.g., Make UC a Good Neighbor v. Regents of the University of California (2024) 16 Cal.5th 43, 55.)

Ordinarily, an enhancement placed in a judgment is described as “imposed” even if the punishment is stayed. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1163 [describing prior serious felony enhancement as “imposed and stayed”].) Considering the ordinary language of subdivision (a) alone, there is no reason to read into it an exclusion that the Legislature could have added but did not. (People v. Mayberry (2024) 102 Cal.App.5th 665, 676 [“plain language” of subdivision (a) includes imposed and stayed enhancements], review granted Aug. 14, 2024, S285853.)

The Legislature could use “imposed” as an abbreviated way to communicate “imposed and executed,” so the majority is at least correct that our interpretation need not stop at subdivision (a) alone. (§ 1172.75, subd. (a).) Analyzing a different statute, our Supreme Court found “the word ‘impose’ . . . must be interpreted as shorthand for ‘impose and then execute’ to make sense.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1127.) Here, though, the rest of section 1172.75 shows that we need not read the word as

shorthand for the statute to “make sense.” Indeed, in People v. Renteria (2023) 96 Cal.App.5th 1276, 1282 (Renteria), almost two years after the statute was enacted, even the People conceded that the law “squarely applies” to “imposed and stayed” enhancements. The People’s view of the ordinary meaning, well after heavy litigation on the statute had begun, indicates that the shorthand interpretation is unnecessary for the statute to “make sense.”

The rest of section 1172.75 provides various reasons to conclude that we should not read into subdivision (a) an exclusion for “imposed and stayed” enhancements.

A. Subdivision (b) Subdivision (b) of section 1172.75 charges prison administrators with identifying judgments that include the enhancements declared invalid in subdivision (a). It requires the “Secretary of the Department of Corrections and Rehabilitation [CDCR] and the county correctional administrator of each county” to “identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a)” and to provide certain information about those people “to the sentencing court that imposed the enhancement.” (§ 1172.75, subd. (b).)

The subdivision contains no suggestion that prison administrators exclude enhancements imposed and stayed. A drafter of subdivision (b) could not expect that prison officials, charged with finding enhancements described in subdivision (a), would construe “imposed” using inferences gleaned, without any express direction to do so, from subsequent provisions of the statute, as the majority proposes. (§ 1172.75, subds.

(a), (b).) The natural reading of subdivision (b) applies the interpretation the Attorney General had in Renteria, supra, 96 Cal.App.5th at p. 1282; that is, that subdivision (a) includes all imposed prison prior enhancements.

In fact, when drafting and voting on the statute, the Legislature was aware that CDCR had identified the individuals with enhancements imposed, at least as a group, when subdivision (a) was in the statute but none of the resentencing provisions yet were.

CDCR informed the Assembly Public Safety Committee that it had identified 10,133 inmates. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended July 7, 2021, pp. 3-4.) We know, from this case and many others, that CDCR identified defendants whose enhancements were “imposed” but also stayed, so we have every reason to presume that CDCR was including defendants like Cline all along.

Thus, CDCR appears to have done exactly what a drafter or reader of the text would have expected it to do.

Subdivision (b), for these reasons, supports interpreting “imposed” in subdivision (a) to mean “imposed.” (§ 1172.75, subds. (a), (b).) A statute that excluded “imposed and stayed” enhancements would provide clearer instructions to CDCR to exclude them.

B. Subdivision (c) Subdivision (c) of section 1172.75 instructs trial courts on what to do with the information from prison administrators. The court is required to “verify” that the “current” judgment includes a sentencing enhancement described in subdivision (a).

(§ 1172.75, subd. (c).) This means that the court is to check to ensure that the enhancement remains in the operative judgment.

The use of the verb “verify” suggests that the court is to confirm the judgment on its face falls within subdivision (a), rather than exercise judicial discretion to evaluate it.

“Verifying” typically refers to confirming truth using external information, not analyzing something afresh. (See, e.g., Intellicheck Mobilisa, Inc. v. Wizz Sys., LLC (W.D. Wash. 2016) 173 F.Supp.3d 1085, 1108 [defining “verify” as “‘to confirm the truth or truthfulness of. . .to confirm or establish the authenticity or existence of’”].) The use of the adjective “current” suggests that the court’s verifying task is to ensure the enhancement imposed in the judgment identified by CDCR has not been vacated, such as on direct appeal.

The task of verifying that the current judgment includes the enhancement suggests that CDCR has performed a ministerial task of finding judgments with the enhancements.

It also suggests that the court’s task is to confirm that the enhancement is still in the current judgment. This reading makes sense because, before the legislation was enacted, CDCR told the Legislature that it had identified the inmates (10,133 of them) whose judgments included the now-invalid enhancement. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 483, supra, as amended July 7, 2021, pp. 3-4.) As this was no obstacle for CDCR, it would leave the court’s task to verify that, between the time that CDCR provides the judgments and the petitioner’s hearing, the enhancement had not already been eliminated from the current judgment. This is an ordinary meaning of the

combination of “verify” and “current”: to confirm that previously provided information is unchanged. (Cf. Welf. & Inst. Code, § 12304.41 [“verify” entity’s “current” mailing address and update if needed]; Bus. & Prof. Code, § 7599.39 [licensee to “verify” proof of “current” registration].)

Subdivision (c) contains no suggestion that the court is supposed to exclude imposed enhancements for any reason not stated in subdivision (a). (§ 1172.75, subds. (c), (a).) On the contrary, the trial court must confirm that the judgment “includes a sentencing enhancement described in subdivision (a)” (§ 1172.75, subd. (c)), the provision that describes prison priors “imposed” without indicating that stayed enhancements are excluded.

Once a trial court determines the current judgment “includes an enhancement” described in subdivision (a), “the court shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).) At that stage, “section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) The statute thereby provides the entire process resulting in a mandatory resentencing without suggesting that the term “imposed” excludes “imposed and stayed.”

C. Subdivision (d)(1) In subdivision (d)(1), the Legislature required that the resentencing must result in a “lesser” sentence than the one originally imposed. (§ 1172.75, subd. (d)(1).) That description of a “lesser” sentence includes one where nothing changed from the original

sentence but the elimination of an enhancement with a stayed prison term. Such a sentence is neither a “greater” sentence nor the “same” sentence earlier imposed. Rather, a sentence with an invalid enhancement eliminated is a lesser one than a sentence with one included. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1156 [a sentence is a “lesser sentence” when there are fewer components to it, even if no “on the ground change”].)

The Legislature did not require that the court impose a “shorter” prison term than before. This choice of “lesser” rather than “shorter” appears deliberate. Subdivision (d)(1) also states that the court may not impose a “longer” sentence than the original one. (§ 1172.75, subd. (d)(1).) Though it forbade a longer sentence, the Legislature did not require a shorter one.

When the Assembly Committee on Public Safety added the “lesser” language to the statute in a July 15, 2021, amendment, it had a reason to use that word. It had been informed that thousands of sentences would be rendered “lesser” but not necessarily “shorter” with the elimination of an invalid enhancement. CDCR had reported that 3,061 inmates with a prison prior were serving an indeterminate sentence (that is, a life sentence). (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 483, supra, as amended July 7, 2021, p. 4.) The report explained that for these persons to be released they “would still be required to have a parole suitability hearing before the Board of Parole Hearings.” (Ibid.) When CDCR provided the report, the “imposed” language in subdivision (a) had been in the draft statute for several months, since March 3, 2021.

CDCR had no different standard for what enhancements the statute covered, other than that they were “imposed.”

The Legislature thereby learned that when courts eliminate prison priors from the judgment of any of over 3,000 defendants with indeterminate sentences, that action would not make a shorter sentence. Even if a component of such a defendant’s determinate sentence (or minimum custody time on their life sentence) is reduced, the defendant stays in custody for life unless they—separately—qualify for release on parole. (See, e.g., People v. Dowdy (2024) 107 Cal.App.5th 1, 5-6 [prison priors imposed run consecutive to 25-years-to-life sentence].) Such a defendant might, on a section 1172.75 resentencing, receive a shorter sentence for reasons other than the elimination of the enhancement.

Told that CDCR had identified 3,061 inmates with indeterminate sentences to whom section 1172.75 would apply, the Legislature did not narrow the statute to exclude them. These inmates qualify to have their enhancements eliminated and to be resentenced. The Legislature chose to eliminate these legally invalid enhancements even if doing so would not mean a shorter sentence for the inmate. The use of “lesser” in the statute accords with that. The Legislature’s treatment of indeterminate sentences and its use of the term “lesser” (rather than “shorter”) support concluding that section 1172.75 applies to “imposed and stayed” enhancements, a similar situation where the elimination of the enhancement would not itself mean a shorter sentence.

The majority (maj. opn., ante, at pp. 7-9) follows People v. Rhodius (2023) 97 Cal.App.5th 38, 44, review granted, Feb. 21, 2024, S283169, and interprets the requirement that the resentencing must “result in a lesser sentence” as meaning that an enhancement is imposed under subdivision (a) only if “the repealed enhancement increased the length of the sentence.” Otherwise, Rhodius concluded, a resentencing court would have to “arbitrarily lower” the sentence, because the elimination of the enhancement would not itself do that. (Ibid.)

This view would be better supported had the Legislature required a “shorter” sentence. The Legislature did not do so, even though it prohibited “longer” sentences.

The view also does not square with the Legislature’s consideration of enhancements to indeterminate sentences that do not “increase[] the length of the sentence” (Rhodius, supra, 97 Cal.App.5th at p. 44) because those defendants are subject to a life sentence no matter whether the enhancement was imposed and no matter whether it is eliminated.

The Rhodius view seems to require that defendants with indeterminate sentences not receive section 1172.75 relief even if their enhancement was imposed and executed, because such an enhancement does not increase their sentence length. But the Legislature was told that CDCR had identified these defendants for relief, and the legislative history suggests no intent to exclude them. If anything, the distinctive term “lesser” contradicts the majority’s view: it helps show the statute includes defendants with indeterminate sentences and defendants with stayed enhancements. For each, simply eliminating the enhancement is a lesser sentence but not a shorter one.

Subdivision (f) of section 1172.75 refutes the majority’s view even more directly.

Beginning January 1, 2025, that subdivision renders ineligible for recall and resentencing sexually violent offenders who have a sentence of death or of a life term without the possibility of parole (LWOP). That exclusion reflects the assumption that section 1172.75 resentencing applies to defendants with death or LWOP sentences, so long as the crime is not a sexually violent offense. In such cases, any imprisonment on the prison prior does not increase the length of the sentence. With or without the enhancement, these defendants cannot be released at all. The enhancements nevertheless qualify a defendant for recall and resentencing. This demonstrates that the statute contemplates that enhancements are “imposed” under subdivision (a) when they are included in the judgment, not only where “the repealed enhancement increased the length of the sentence.” (Rhodius, supra, 97 Cal.App.5th at p. 44.)

D. Subdivisions (d)(2), (d)(3), and (d)(4) The majority correctly recognizes that a preeminent goal of the Legislature in enacting section 1172.75 was to eliminate prison prior enhancements such that inmates do not serve custody time on them. (Maj. opn, ante, at p. 11.) That statutory purpose is satisfied because any interpretation of “imposed” includes all defendants with “imposed and executed” enhancements.

But the Legislature did not simply eliminate the enhancements by ordering them struck. Rather, it required the court to “recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).) The Legislature ordered the resentencing of inmates based on

current sentencing rules and “any other changes in law that reduce sentences or provide for judicial discretion.” (§ 1172.75, subd. (d)(2).) The Legislature expressly stated its purpose: “to eliminate disparity of sentences and to promote uniformity of sentencing.” (Ibid.) In recent years, there have been an array of ameliorative sentencing measures, and the inmates receive the benefits of any of them at the resentencing. (See People v. Christianson (2023) 97 Cal.App.5th 300, 314 [section 1172.75 “involves statutory amendments expressly aimed at reducing sentences” and requires a full resentencing “in light of all associated sentencing reform”), review granted Feb. 21, 2024, S283189.)

To that end, the Legislature specified that a defendant could obtain a lesser sentence based on “postconviction factors.” (§ 1172.75, subd. (d)(3).) At the resentencing, the inmate can benefit from their “disciplinary record and record of rehabilitation”; evidence that “age, time served, and diminished physical condition, if any, have reduced [their] risk for future violence”; and evidence 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).) For the resentencing, the court placed a presumption, like that it placed in section 1170, subdivision (b)(2), that the sentence will not exceed the middle term absent facts in aggravation that the inmate has admitted or that have been proved in court beyond a reasonable doubt. (§ 1172.75, subd. (d)(4).)

These resentencing goals apply just as well to those with stayed punishment on their enhancements as they apply to those with executed punishment. In fact, if we

exclude those inmates with stayed punishment from section 1172.75 relief, we create more sentencing disparities, not fewer.2 Here, for instance, the trial court imposed and stayed punishment on all seven of Cline’s prison prior enhancements. Under the majority’s view, Cline is denied a resentencing solely because of the decision to stay that punishment. If the trial court had executed punishment on even one of those enhancements, Cline’s sentence would be recalled, and, on resentencing, not only would that punishment be eliminated, but he would have a chance to argue for a lesser sentence. For example, he could seek a lesser firearm enhancement of three or four years under section 12022.5, instead of the ten-year enhancement he received earlier. He could rely on his record while incarcerated, new material since his last sentencing. Whatever his chance of success in such an argument, there is no reason why his ability to make it should depend on whether the court stayed punishment on his prison priors. An inmate much like Cline but who the sentencing judge thought deserved more punishment—and thus refused to stay a prison prior— would today have a chance to seek the more lenient sentence simply because their prison prior enhancement was executed. This is not the uniformity in sentencing that section

1172.75, subdivision (d)(2) seeks. The majority’s interpretation of section 1172.75 contradicts the statute’s express purposes.

Every inmate with an “imposed and executed” prison prior receives relief under section 1172.75, accomplishing the legislative policy of ensuring inmates do not serve time on prison priors. But the legislative policy of allowing a resentencing in section 1172.75, subdivisions (d)(2), (d)(3), and (d)(4) applies equally to those with “imposed and executed” and “imposed and stayed” prison priors. We undermine the uniform sentencing goal of the statute if we deny resentencing to those with punishment stayed on their enhancement.3 II As discussed in Section I, the word “imposed” in subdivision (a), read either alone or with the whole statute, is best interpreted as including both “imposed and executed” and “imposed and stayed” enhancements. The majority relies on a single statutory term—“lesser” sentence—that does not advance its argument that “imposed” is shorthand for “imposed and executed.” Rather, the text conveys that all defendants with prison priors imposed in their judgment are to have their sentence recalled and be resentenced.

Given the statutory text, we need not further parse section 1172.75’s legislative history. Even so, because the majority asserts that the legislative intent conflicts with

3 The Legislature recently again endorsed resentencings in this context. Effective at the beginning of 2025, a new section 1171 states that a trial court “has jurisdiction to modify every aspect of the defendant’s sentence” in a postconviction petition such as this one, so long as there is no more specific rule prohibiting doing so. (§ 1171, subd. (c) & (c)(2); see Assembly Bill No. 2483 (Stats. 2024, ch. 964, § 2, eff. Jan. 1, 2025).) interpreting section 1172.75 to include “imposed and stayed” enhancements (maj. opn., ante, at p. 10), I will address the legislative history.

Effective January 1, 2020, the Legislature established the Committee on Revision of the Penal Code to study that Code and propose reforms. (Government Code §§ 8280, 8290.5.) Its first set of recommendations, published February 9, 2021, contained two recommendations that became part of section 1172.75.4 The first recommendation was to strike the prison prior enhancements retroactively. The second was to establish a judicial process for “second look” resentencing, the Model Penal Code’s term for revisiting inmates’ entire sentences (Committee on Revision of Penal Code, Annual Report and Recommendations, supra, at p. 68). Each proposal became a different bill.

First, on March 3, 2021, Senate Bill No. 483 was introduced to implement the recommendation about prison prior enhancements.5 The first version of Senate Bill No. strictly followed the committee recommendation and had no resentencing provision.

Rather, the statute’s subdivision (c) directed courts to “administratively amend the abstract of judgment to delete that enhancement.” The proposal had no subdivision (d), as would the final bill. There was no “lesser sentence” requirement, and courts had no authorization to consider other changes in law. The initial bill analysis quotes the bill’s author as stating that Senate Bill No. 483 is eliminating the enhancements “[a]s Committee on Revision of Penal Code, Annual Report and Recommendations, (Feb. 9, 2021) <https://perma.cc/TG5N-XNGL>, pages 48-51, 64-68.

5 The substance of Senate Bill No. 483 was offered as an amendment replacing unrelated text of an existing bill. The same occurred with Assembly Bill No. 1540 discussed next. recommended by the state’s Committee on Revision of the Penal Code.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 483, supra, hearing Apr. 27, 2021 for version Mar. 3, 2021, p. 2.)

Meanwhile, on March 11, 2021, Assembly Bill No. 1540 (Assem. Bill No. 1540) was introduced in the Assembly Committee on Public Safety to implement the “second look” recommendation for defendants who law enforcement suggested for recall and resentencing. The introduced version of Assem. Bill No. 1540 contained resentencing provisions like those that the same committee would, four months later, import into Senate Bill No. 483. In its proposed section 1170.03 (later adopted and then renumbered as section 1172.1), Assem. Bill No. 1540 proposed resentencing to “eliminate disparity of sentences and to promote uniformity of resentencing,” and it contained a description of the post-conviction factors that a court may consider. (Proposed § 1170.03, subds. (a)(2), (a)(4).) The committee’s analysis of the bill discussed the Committee on Revision of the Penal Code’s “second look” resentencing recommendations and stated that “[t]his bill is a response to the Committee’s recommendations on resentencing.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1540, as amended April 22, 2021, pp. 5-6.)

Senate Bill No. 483—the prison prior bill—passed the Senate and proceeded to the Assembly Committee on Public Safety. There, an important change occurred. That committee amended the bill to eliminate the “administrative” striking of enhancements and replaced it with the recall and resentencing provisions now found in section 1172.75, subdivision (d). (See Assem. Com. on Public Safety, Analysis of Assem. Bill No. 483, as

amended July 7, 2021, pp. 1-2 [explaining resentencing provisions].) The committee adapted those provisions from Assem. Bill No. 1540, the “second look” resentencing bill.

A staff member from the Committee on Revision of the Penal Code testified before the Assembly Committee on Public Safety in support of the amended bill on July 13, 2021, stating that “as amended by the committee, it will ensure that fair sentencing hearings are held when necessary” and “it will promote justice, rationality, uniformity in sentencing.”6 At that point, Senate Bill No. 483 no longer was about only eliminating enhancements; it was also about the resentencing goals in the “second look” resentencing recommendation.

The Legislature enacted both Senate Bill No. 483 and Assem. Bill No. 1540, providing similar resentencing provisions in each. Both current section 1172.75, subdivision (d)(2) and section 1172.1, subdivision (a)(2) instruct courts to apply “changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” Both current section 1172.75, subdivision (d)(3) and section 1172.1, subdivision (a)(5) allow courts to 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.”

This legislative history, then, confirms that section 1172.75 reflects not just the purpose of eliminating one-year prison prior enhancements (one proposal of the Committee on Revision of the Penal Code) but also the purpose of revisiting the sentences of persons sentenced under other laws that have been changed, or where post- conviction factors might make a difference (the separate “second look” proposal).

Rhodius, however, relied on only a single piece of legislative history: a March 3, 2021, report from the Senate Public Works Committee, discussing the initial version of Senate Bill No. 483. (See Rhodius, supra, 97 Cal.App.5th at pp. 46-48.) At that point, the draft statute contained no resentencing provisions and required courts simply to delete prison prior enhancements. That legislative history does not relate to the Assembly’s July 2021 decision to amend the statute to require recall and resentencing and to authorize courts to consider other changes in law and post-conviction conduct by creating subdivision (d). Rhodius, and today’s opinion, address only legislative history that pre- dates the existence of that subdivision.

This history of section 1172.75 provides another reason why “imposed” means what the text states it does: a prison prior included in the judgment. By providing for recall and resentencing while eschewing the proposal to simply strike the enhancements, the Legislature’s intent was—as in section 1172.1—to allow deserving defendants to benefit from resentencing, and there is no reason why those with “imposed and stayed” enhancements are less likely to benefit than those with “imposed and executed” ones.

III One final item: the majority directs the trial court to strike or vacate the prison prior enhancements. (Maj. opn., ante, at p. 11.) There is no authority for that.

These enhancements were not retroactively invalidated until the Legislature declared them invalid in section 1172.75, subdivision (a). The only authority for doing so is section 1172.75. If they do not fall under section 1172.75, then there is no authority for addressing them. If they fall under section 1172.75, then there also is no authority to “strike” them, as the statute requires that the court “shall recall the sentence and resentence the defendant,” not strike the enhancements. (§ 1172.75, subd. (c).)

An “imposed and stayed” enhancement is a part of a sentence, and it can be executed by the court lifting the stay when another enhancement is reversed or vacated. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130 [various firearms enhancements are to be “imposed and stayed” so if the executed one is found invalid on appeal, the others are “readily available”]; People v. Alford (2010) 180 Cal.App.4th 1463, 1469 [“if the unstayed sentence is reversed, a valid sentence remains extant”]; People v. Begnaud (1991) 235 Cal.App.3d 1548, 1553 [“When the principal term was reversed, the stay was removed and the full middle term became the sentence”].)

Practically, there is no chance that Cline’s stays would ever be removed. But the majority’s approach is wrong in principle, as it orders a court to strike a stayed sentence absent a law providing authority to do so. (See People v. Karaman (1992) 4 Cal.4th 335,

344, fn. 9 [judgment is orally pronounced by the court at sentencing].)7 While it makes eminent sense to eliminate Cline’s prison prior enhancements, the statutory way to do so is what the Legislature authorized in section 1172.75, subdivision (c): recalling his sentence and resentencing him.

If Cline had an executed prison prior enhancement in his judgment along with his life sentence, the majority presumably would follow the statutory procedure and order a recall and resentencing. The Legislature enacted that procedure in section 1172.75, rejecting the initially proposed procedure of striking enhancements that the majority applies to Cline’s case. I am dissenting because I would follow the terms of the statute.

Doing so is also more consistent with the statutory purpose of seeking uniform sentencing under current laws. Under section 1172.75, all those with a prison prior enhancement included in their judgment qualify for recall and resentencing.

RAPHAEL J.

The court originally imposed-and-stayed seven prison priors. At the 2019 resentencing, the court struck a different enhancement per the parties’ stipulation and stated “no other changes will be made with regard to the sentence previously imposed.” The 2019 abstract of judgment included the seven prison prior enhancements with stayed punishment. That sentence can be changed through the section 1172.75 resentencing procedure, but there is no general authority for a court to simply decide to strike part of it.