Filed 4/11/25 P. v. Mialkousky CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083235 v. (Super.Ct.No. RIF145467) DOUGLAS ALEXANDER OPINION MIALKOUSKY, Defendant and Appellant.

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

Affirmed.

John L. Staley, 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, Christopher P. Beesley and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Douglas Alexander Mialkousky appeals from the trial court’s order finding him ineligible for recall of his sentence and resentencing under Penal Code section 1172.75.1 The trial court entered its order after determining one-year enhanced terms under section 667.5, subdivision (b), for three of defendant’s prior prison commitments remained stayed since defendant was originally sentenced 14 years earlier.

We affirm the court’s ruling.

BACKGROUND In October 2009, a jury convicted defendant of assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)), finding also that in using a sharp instrument (§§ 667, 1192.7, subd. (c)(31)), defendant inflicted great bodily injury on the victim (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). In bifurcated proceedings, the trial court found multiple prior conviction enhancements to be true, including three serious felony convictions (§ 667, subd. (a)) and four prior prison commitments (§ 667.5, subd. (b)). The trial court sentenced defendant to an aggregate state prison term of 43 years to life. As relevant here, the court imposed the statutory one-year enhancement terms for each of defendant’s four prison priors (§ 667.5, subd. (b)), but stayed their execution. A subsequent abstract of judgment, issued in November 2011, lists only three prison prior enhancement terms, each still stayed, but the absence of the fourth suggests it was stricken.

In December 2023 the trial court considered defendant’s eligibility for recall of his sentence and resentencing under section 1172.75. The court found he was ineligible. The court expressly noted defendant’s “prison priors were actually stayed, not stricken, at the time of sentencing.”

In reaching the conclusion defendant was ineligible, the court noted it considered several recently decided cases: People v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted March 12, 2024, S283547; People v. Christianson (2023) 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189 (Christianson); People v. Rhodius (2023) 97 Cal.App.5th 38 (Rhodius), review granted February 21, 2024, S283169; and People v. Renteria (2023) 96 Cal.App.5th 1276.

DISCUSSION Defendant contends he is entitled to recall of his sentence and resentencing under section 1172.75 despite the stay on enhanced penalty terms for his prison priors. The stay has never been lifted. We conclude the trial court did not err in finding defendant ineligible for resentencing under the statute.

At the time of defendant’s conviction and sentencing, “section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years.” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Subsequently, section 1172.75 now provides, with an exception that is not applicable here: “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5 . . . is legally invalid.”

(§ 1172.75, subd. (a), italics added.2) Disagreement over what constitutes “imposed” within the meaning of the statute still divides appellate panels, as we note briefly post.

Section 1172.75 further provides, as pertinent here, for recall and resentencing on conditional terms, i.e., only “[i]f” the superior court in which the defendant was sentenced “determines that the [defendant’s] current judgment includes an enhancement described in subdivision (a).” (§ 1172.75, subd. (c), italics added; see id., subd. (b) [specifying sentencing court as recall and resentencing venue].) Additionally, the statute specifies that for defendants eligible for recall and resentencing, their resentencing “shall result in,” “as a result of the elimination of the repealed enhancement,” “a lesser sentence than the one originally imposed . . . , unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (§ 1172.75, subd. (d)(1), italics added.3) We conclude defendant is ineligible for resentencing under section 1172.75 because his prison prior enhancement terms have remained stayed since his original sentencing. Simply put, we agree with Rhodius, supra, 97 Cal.App.5th 38 that the critical term “imposed” in subdivision (a) of section 1172.75 “must be interpreted as shorthand

Of particular note in the statute’s codified provisions, Rhodius examined 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, 97 Cal.App.5th at p. 43, some italics omitted.)

Reasoning 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,” Rhodius concluded that applying section 1172.75 to a stayed prior prison term would require a resentencing court to “arbitrarily lower” the defendant’s sentence in a way unrelated to the enhancement in order to comply with the statute’s “lesser sentence” requirement. (Rhodius, at p. 44.) Because the Legislature presumably must not have intended arbitrary sentence reductions to meet this requirement, Rhodius held section 1172.75 must be interpreted to apply only to prior prison enhancement terms that were imposed and executed. (Rhodius, at p. 44.)

Similarly, in the uncodified preamble to the statute, the Legislature stated its intent expressly in a way incompatible with relief for stayed prison priors: “it is the intent of the Legislature to retroactively apply [new limitations on prior prison term enhancements] to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.” (Stats. 2021, ch. 728, § 1, italics added.) A defendant who had his or her punishment on a prior prison enhancement stayed at sentencing is not serving a term of incarceration in jail or prison for that enhancement, so the Legislature manifestly did not intend to provide retroactive relief to those defendants.

Other appellate panels—one before Rhodius and the others relying on Christianson after Rhodius was decided—have held that section 1172.75 applies to prior prison term enhancements that were imposed but stayed. (See People v. Renteria, supra, 96 Cal.App.5th 1276; see also Christianson, supra, 97 Cal.App.5th 300; Saldana, supra, 97 Cal.App.5th 1270; People v. Mayberry (2024) 102 Cal.App.5th 665 (Mayberry), review granted Aug. 14, 2024, S285853.) All of these decisions since and including Rhodius remain under review, as the high court considers the issue.

In brief, Christianson, Saldana, and Mayberry disagreed with Rhodius because they viewed striking a stayed enhancement upon resentencing as resulting in a “lesser” sentence in compliance with section 1172.75, subdivision (d)(1). As Christianson explained, this view is grounded in a stayed enhancement’s “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.) Under this interpretation, striking a

stayed enhancement reduces the defendant’s sentence because it eliminates the risk that the enhancement will be eJxecuted in the future. (Ibid.; see also Saldana, at p. 1278; Mayberry, at pp. 674-675 [“Imposed-but-stayed prior prison term enhancements carry the possibility of execution,” and striking them “eliminates their impact”].)

We do not agree with this rationale. It does not account for the uncodified preamble to section 1172.75 stating the Legislature’s contrary intent. Likewise, the statute’s codified language requiring a lesser sentence is better reconciled with an actual reduction in “time served” as the enactment’s goal, as reflected throughout section 1172.75’s legislative history. (See Rhodius, supra, 97 Cal.App.5th at pp. 46-48 [identifying numerous such instances].) Rhodius summarized that history as follows: “The findings, costs, and ramifications of Senate Bill 136 and 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.” (Rhodius, at pp. 48-49; see also id. at p. 47 [the foregoing history reflects “a clear presupposition by the Legislature of an imposed and executed sentence”].)

Defendant cites in his reply brief the decision by a divided panel in People v. Espino (2024) 104 Cal.App.5th 188 (Espino), review granted Oct. 23, 2024, S286987.

The majority in Espino saw no reason to distinguish between prison prior enhancements that were imposed but stayed and those that were imposed but the punishment struck. (Id. at p. 193 [“section 1172.75 should be interpreted to apply whenever a prison prior was imposed, whether punishment was executed, stayed, or struck”].)

The dissent in Espino, however, found the “additive character of the term of imprisonment . . . integral to imposition of a sentence enhancement,” such that “when the law otherwise prescribes an additional term of imprisonment, a trial court that elects to strike that additional term of imprisonment has not imposed it—not even conditionally, as would be the case when a court elects to stay the additional term.” (Espino, supra, Cal.App.5th at p. 203 (dis. opn. of Lie, J.).) The dissent also echoes Rhodius’s concern that the Legislature presumably did not intend to force resentencing courts to arbitrarily lower sentences, noting that “eliminating an enhancement for which the court had already stricken the punishment” does not, by itself, result in a lesser sentence. (Espino, at p. 203, fn. 2 (dis. opn. of Lie, J.).) The majority opinion does not address these issues, which contravene both Rhodius’s and Christianson’s analyses of section 1172.75. On balance, we find the Espino dissent more persuasive than the majority opinion.

For all of these reasons, the trial court did not err in finding defendant ineligible for recall of his sentence and resentencing under section 1172.75.

DISPOSITION The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RAMIREZ P. J.

McKINSTER J.