Filed 3/25/25 P. v. Bess CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, G063556 v. (Super. Ct. No. 96CF3190) DANIEL EDWARD BESS, OPINION Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded with directions.

Robert L.S. Angres, 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, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

Daniel Edward Bess appeals from the denial of his petition for recall and resentencing pursuant to Penal Code sections 1172.7 and 1172.75.1 Bess contends the trial court erred in concluding he was not entitled to relief because his prior prison term enhancement under former section 667.5, subdivision (b) (section 667.5(b)) was “‘either stayed or stricken at the time of sentencing.’” We agree with Bess and reverse and remand for resentencing.

PROCEDURAL HISTORY In May 1997, after being convicted by a jury, the trial court sentenced Bess to two consecutive indeterminate terms of life imprisonment.

Pertinent to this appeal, the court stayed the sentence on a prior prison term enhancement (former § 667.5(b)). A complete recitation of the facts can be found in our prior nonpublished opinion, People v. Bess (Mar. 30, 1999, G021682).

In November 2023, Bess petitioned for recall and resentencing under Senate Bill No. 483 (2021-2022 Reg. Sess.) (§ 1172.75), and the trial court denied the petition. The court found Bess was not eligible for relief because the enhancement had been stayed or stricken. Bess filed a timely notice of appeal.

DISCUSSION Effective January 1, 2022, section 1172.75 provides that certain one-year sentence enhancements for prior prison terms imposed under former section 667.5(b) are legally invalid and provides a mechanism for resentencing individuals serving judgments that include one or more of those enhancements. (§ 1172.75, subds. (a)–(c).) The question before us in this

1 All further statutory references are to the Penal Code, unless otherwise indicated.

appeal is whether section 1172.75 entitles a defendant to a resentencing hearing if the defendant’s prior prison term enhancements were stayed for the purposes of sentencing.

There is a split of authority on the issue, and we await resolution by our Supreme Court. In our own district, the divisions have disagreed on the issue. (Compare People v. Rhodius (2023) 97 Cal.App.5th 38, 40–41, 45, 48–49 [§ 1172.75 does not authorize resentencing for stayed prior prison term enhancements], review granted Feb. 21, 2024, S283169 (Rhodius), with People v. Christianson (2023) 97 Cal.App.5th 300, 305 [§ 1172.75 requires resentencing for stayed prior prison term enhancement], review granted Feb.

21, 2024, S283189 (Christianson).)1 Bess argues the plain language of section 1172.75 does not limit its application to cases in which the enhancement was ordered to be executed.

This position is consistent with the court’s holding in Christianson. The Attorney General relies on Rhodius, just as the trial court did. He contends because the court stayed the punishment for Bess’s prior prison term enhancement, Bess is not entitled to relief under section 1172.75. Both parties rely on the statutory language and interpretation for their conclusions. We agree the question is resolved by statutory interpretation.

1 We are aware there are a multitude of opinions issued by other appellate courts on this issue. Indeed, the number seems to grow daily. We limit our discussion to Rhodius and Christianson because we believe these cases adequately explain the reasoning supporting the different results.

The proper interpretation of a statute is a question of law that we review de novo, under well-settled standards. (People v. Lewis (2021) 11 Cal.5th 952, 961.) In interpreting a statute, “‘[o]ur fundamental task . . . is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. . . . If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.’” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165–166.) “We must look to the statute’s words and give them their usual and ordinary meaning.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126 (Gonzalez).)

Under section 1172.75, subdivision (a), “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to [former section 667.5(b)], 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.” The Attorney General argues the terms “‘imposed,’” for purposes of section 1172.75, means imposed and executed, not imposed and stayed for purposes of punishment. He notes section 1172.75, subdivision (d)(1), states that resentencing “shall result in a lesser sentence than the one originally imposed.” He asserts that when an “inert” enhancement is stayed, it cannot be said the result is a lesser sentence.

The issue of a lesser sentence was addressed in Christianson. The court reasoned that a stayed enhancement “result[s] in a lesser sentence” under section 1172.75, subdivision (d)(1), because “[w]hen 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. [Citation.]” (Christianson, supra, Cal.App.5th at p. 312, rev.gr.)

Here, the trial court stayed the enhancement for the purpose of sentencing. The enhancement remained part of the judgment. As part of the judgment, a stayed or stricken enhancement could be revived upon resentencing consideration. (People v. Garner (2016) 244 Cal.App.4th 1113, 1115 [at resentencing hearing under the Three Strikes Reform Act of 2012, trial court properly reimposed previously stricken former § 667.5(b) enhancements].) Accordingly, a stayed or stricken enhancement is not necessarily “inert,” as the Attorney General describes it.

Returning to the statutory language, section 1172.75, subdivision (b) directs “[t]he Secretary of the Department of Corrections and Rehabilitation 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 [invalid] enhancement [and] provide [their information] to the sentencing court that imposed the enhancement.” This provision does not limit the obligation to identify only those defendants who are actually serving a sentence for the enhancement. The absence of such a limitation indicates the Legislature did not intend to restrict relief to those defendants whose sentences had been both imposed and executed as the Attorney General argues. As the court in Christianson stated, if the Legislature had intended to limit section 1172.75 to only those individuals who were currently serving an additional term based on the enhancement, it had the ability to do so. (Christianson, supra, 97 Cal.App.5th at p. 313, rev.gr.)

The Attorney General contends Gonzalez supports his position.

We agree with the Christianson court that Gonzalez is not controlling. There, our Supreme Court recognized the term “imposed” could encompass enhancements that were imposed and executed and enhancements that were imposed and stayed, but stated, “‘[A]s a practical matter, the word “impose” is often employed as shorthand to refer to the first situation . . . .’ [Citation.]” (Gonzalez, supra, 43 Cal.4th at p. 1125.) Construing the term in the context of the statutory scheme before it, the court held that “imposed” in section 12022.53, subdivision (f) meant imposed and executed. (Gonzalez, at p. 1126.)

This construction accorded with the statute’s purpose of ensuring longer sentences for felons who use firearms. (Id. at p. 1129.) Unlike the statute at issue in Gonzalez, section 1172.75 is “expressly aimed at reducing sentences by retroactively eliminating a sentencing enhancement.” (Christianson, supra, 97 Cal.App.5th at p. 314, rev.gr.) Gonzalez is therefore unhelpful to the Attorney General’s position.

We acknowledge the well-reasoned dissent in People v. Espino (2024) 104 Cal.App.5th 188, review granted October 23, 2024, S286987, which concludes that where the punishment for an enhancement was stricken, the enhancement has not been imposed within the meaning of section 1172.75. We also have considered the reasoning in Rhodius and the Attorney General’s argument concluding both are plausible. But we find the reasoning in Christianson regarding a stayed enhancement compelling and see no reason to conclude differently when the enhancement is stricken.

When an enhancement is found to be true by a trial court or a jury, or admitted by the defendant, it becomes part of the judgment and must be addressed as part of the sentencing process. A sentence on the enhancement may be imposed and executed so that the defendant serves an additional term of imprisonment. Or the court may stay or strike the enhancement so that the enhancement does not increase the defendant’s sentence. Whether or not the sentence is increased because of the enhancement, the enhancement is accounted for in the judgment and abstract. We do not draw a distinction in terms of the application of section 1172.75 between an executed sentence and a stayed or stricken sentence.

We agree with our concurring colleague that this statute, like many others, was not drafted with the specificity most courts would prefer.

We also agree two reasonable interpretations of the statute, based on differing cogent rationale, support conflicting results in numerous cases throughout the state. But that does not lead us to conclude either interpretation is “‘“‘no more than [a] guess.’”’” (People v. Nuckles (2013) 56 Cal.4th 601, 611.) When Courts of Appeal reach differing reasonable interpretations of a statute, it is for the Supreme Court to resolve the conflict.

The Supreme Court then disapproves Court of Appeal holdings that are contrary to its decision. This is what we expect to happen on the issue presented here. We think it unlikely the Supreme Court will find this statute to be egregiously ambiguous.

Whether executed, stayed, or stricken, the judgment contains a now-invalid enhancement for a prison prior regardless of how the trial court addressed the enhancement. We therefore reverse the court’s postjudgment order.

DISPOSITION The postjudgment order denying Bess’s petition for recall and resentencing is reversed, and the matter is remanded to the trial court for resentencing. Upon conclusion of the new sentencing hearing, the court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

O’LEARY, P. J.

I CONCUR:

GOODING, J.

DELANEY, J., Concurring.

I agree with the majority that the sole issue in this case concerns the interpretation of Penal Code section 1172.75, and I agree the trial court erred in denying defendant Daniel Edward Bess’s resentencing petition.1 I write separately because I believe the statutory analysis which compels this conclusion is different than that articulated in People v. Christianson (2023) 97 Cal.App.5th 300, review granted February 21, 2024, S283189 (Christianson), on which the majority relies.

“Our task when interpreting statutory language is to discern the Legislature’s intent ‘so as to effectuate the purpose of the law.’ [Citation.] ‘The statutory language itself is the most reliable indicator, so we start with the statute’s words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute’s plain meaning governs.’” (People v. Hupp (2023) 96 Cal.App.5th 946, 950.)

Section 1172.75 requires resentencing when a defendant’s judgment includes a now-invalid prison prior sentencing enhancement “imposed” pursuant to a former version of section 667.5, subdivision (b). (§ 1172.75, subds. (a), (c).) The Attorney General argues the word imposed should be interpreted to mean imposed and executed.

On its face, section 1172.75 does not require a defendant to have been subjected to a term of imprisonment to qualify for resentencing. Rather, the statute is broadly worded to apply whenever a prior prison term enhancement was “imposed,” without further qualification. (§ 1172.75, subds.

1 All further statutory references are to the Penal Code.

(a), (c).) Had the Legislature intended to limit section 1172.75’s reach to cases where the enhancement was imposed and executed, it could have expressly done so. But it did not.

When the plain language of a statute is clear, courts are not at liberty to rewrite it to conform to a presumed legislative intent which does not appear in its text. (See Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 807; Figueroa v. FCA US, LLC (2022) 84 Cal.App.5th 708, 712). Thus, if one views “imposed” as unambiguous, the express language of section 1172.75 does not support the Attorney General’s interpretation of the statute as requiring both imposition and execution of a prior prison term enhancement as a prerequisite to obtaining resentencing relief. (People v. Espino (2024) 104 Cal.App.5th 188, 197, review granted October 23, 2024, S286987 (Espino); People v. Mayberry (2024) 102 Cal.App.5th 665, 676.)

Applying that understanding of the “imposed” language to a situation in which the punishment for a prison prior enhancement was stayed, a court does not impose a sentence enhancement finding. Rather, it imposes punishment for a sentence enhancement. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1125; Espino, supra, 104 Cal.App.5th at p. 204 (dis. opn. of Lie, J.), rev. granted.) Punishment cannot be stayed, unless it is first imposed. (See People v. Duff (2010) 50 Cal.4th 787, 796 [court must first impose sentence before staying its execution under § 654]; Black’s Law Dict. (12th ed. 2024) p. 1716 [defining “stay” as “[a]n order to suspend all or part of . . . a judgment resulting from [a judicial] proceeding”]; Merriam-Webster Dict. Online (2025) <https://www.merriam-webster.com/dictionary/impose, par. 1.a> [as of Feb. 18, 2025] archived at: <https://perma.cc/9DW6-JUF6> [defining “impose” as “to establish or apply by authority”].) Here, the original

sentencing court stayed the punishment for the enhancement. So, even though Bess was not subjected to prison time as a result of the prior prison term enhancement finding, the sentence enhancement was imposed for purposes of section 1172.75 resentencing eligibility.

While the foregoing analysis is premised on the statute’s plain language being unambiguous and on a certain ordinary meaning of the word imposed, I would be remiss not to recognize People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius), which provides equally persuasive, supported, and well-reasoned argument for ascribing a different meaning to the word imposed, including cogent rationale that goes beyond the statutory language. (See id. at pp. 43–48, rev. granted.)

Among other matters, Rhodius brings to light the current fundamental disagreement among appellate courts regarding whether unexecuted punishment for a prison prior enhancement adds to a defendant’s sentence, such that elimination of all aspects of the enhancement will “result in a lesser sentence than the one originally imposed.” (§ 1172.75, subd. (d)(1); see, e.g., Espino, supra, 104 Cal.App.5th at p. 197, rev. granted; Christianson, supra, 97 Cal.App.5th at p. 312, rev. granted; Rhodius, supra, 97 Cal.App.5th at pp. 43-44, rev. granted.) In this regard, the majority in this case reasons that because an enhancement for which punishment is stayed or stricken remains part of a judgment, “a stayed or stricken enhancement could be revived upon resentencing consideration,” and, thus, it is “not necessarily ‘inert.’” I respectfully disagree this adds anything to the analysis. The majority relies on People v. Garner (2016) 244 Cal.App.4th 1113, which involved prison prior enhancements for which punishment was originally

stricken, and a later resentencing which occurred years before the Legislature enacted section 1172.75, at a time when the one-year prison prior mandate was in full force. (Garner, at pp. 1115–1116; see also former § 667.5, subd. (b), amended by Stats. 2014, ch. 442, § 10.) That a trial court may impose punishment for an enhancement during a resentencing that takes place when such an enhancement is still legally available and applicable, despite the original sentencing court’s decision to strike such punishment, is consistent with the law. (See People v. Padilla (2022) 13 Cal.5th 152, 160–163 (Padilla) [new laws that mitigate punishment for offense generally are presumed to apply to cases not yet final, including when prior sentence is vacated for resentencing]; People v. Walker (2021) 67 Cal.App.5th 198, 205– & fn. 4 (Walker) [except where barred by prohibition against ex post facto laws, trial court must apply law in effect at time of resentencing].)

Relevant here, roughly two years before the Legislature enacted section 1172.75, it amended section 667.5, subdivision (b), to narrow the availability of the one-year prison prior enhancement. (Stats. 2019, ch. 590, § 1.) The enhancement is now only available for prior prison terms for sexually violent offenses, which is the precise type of prison prior enhancement excluded from section 1172.75 resentencing eligibility. (§§ 667.5, subd. (b), 1172.75, subd. (a).) Accordingly, a court conducting a resentencing today could only “revive” a one-year prison prior enhancement for which punishment was previously stricken or stayed, if the qualifying prior prison term was for a sexually violent offense. A court could not, now or in the future, impose a punishment or lift the stay on a punishment for a prison prior enhancement that the Legislature makes unavailable at the time

of a resentencing hearing. (See Padilla, supra, 13 Cal.5th at pp. 160–163; Walker, supra, 67 Cal.App.5th at pp. 205–206 & fn. 4.)

Where, as here, the use of statutory construction tools leads to two reasonable interpretations of the statute which completely counterbalance one another, the inescapable conclusion is the statute is ambiguous in such a manner, and to such an extent, that its meaning cannot be conclusively resolved by applying rules of statutory construction. Under these unique circumstances, the rule of lenity applies, and we must adopt the interpretation most favorable to Bess—that an imposed prison prior sentence enhancement triggers application of section 1172.75’s resentencing process, even if the original sentencing court ultimately stayed the punishment. (See People v. Nuckles (2013) 56 Cal.4th 601, 611 [rule of lenity applies “‘“‘only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule’”’”]; Espino, supra, 104 Cal.App.5th at p. 201, rev. granted [rule of lenity would apply if § 1172.75 interpretations were equally strong on both sides].)

Because Bess’s judgment includes a prison prior sentence enhancement that was imposed prior to January 1, 2020, within the meaning of section 1172.75, I agree Bess is entitled to resentencing.

DELANEY, J.