Filed 4/15/25 P. v. Wilkens 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G063758 v. (Super. Ct. No. 97NF3400) MICHAEL DUANE WILKENS, OPINION Defendant and Appellant.

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

Rex Adam Williams, 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, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Michael Duane Wilkens appeals an order denying his petition for resentencing under Penal Code section 1172.75. Pursuant to that section, resentencing generally is required when the defendant is serving a sentence for a judgment that includes a prior prison term enhancement under section 667.5, subdivision (b) (section 667.5(b)). Although Wilkens’s judgment includes two such enhancements, the trial court determined he was ineligible for resentencing because their punishment was stricken at the time of sentencing. Wilkens contends that ruling was erroneous, and we agree.

Following the Sixth District’s recent opinion in People v. Espino (2024) 104 Cal.App.5th 188 (Espino), review granted October 23, 2024, S286987, and pending review of that issue by the California Supreme Court, we reverse the court’s order and remand for resentencing.

PROCEDURAL BACKGROUND In 1999, Wilkens was convicted of robbery and burglary and found to have suffered multiple prior convictions. He was also found to have served two prior prison terms within the meaning of section 667.5(b), which were based on his commission of burglary in two earlier cases. The trial court sentenced him to an aggregate prison term of 35 years to life in prison. In so doing, the court imposed a one-year enhancement for each of the prior prison terms, but it then struck that punishment for purposes of sentencing.

Effective January 1, 2020, the Legislature limited the applicability of section 667.5(b) to prior prison terms that were served for sexually violent offenses. (Stats. 2019, ch. 590, § 1.) In light of that development, Wilkens petitioned the trial court to recall his sentence and resentence him pursuant to section 1172.75. But because Wilkens’s

All further statutory references are to the Penal Code. punishment on his prison priors was stricken, the court determined he was ineligible for relief and denied his petition.

DISCUSSION Wilkens contends the trial court erred in denying his resentencing petition. We agree.

Before 2020, section 667.5(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. Burgess (2022) 86 Cal.App.5th 375, 379–380.) Effective January 1, 2020, section 667.5 was amended “by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. [Citations.] Enhancements based on prior prison terms served for other offenses became legally invalid.” (People v. Burgess, supra, 86 Cal.App.5th at p. 380.)

Those changes were made retroactive through the passage of subsequent legislation, including section 1172.75. (People v. Monroe (2022) 85 Cal.App.5th 393, 399.) The statute declares that any prior prison term enhancement that was imposed for a nonsexually violent offense before 2020 is legally invalid. (§ 1172.75, subd. (a).) It also provides an ameliorative remedy when the defendant’s judgment includes such an enhancement.

Indeed, the statute requires the trial court to recall the defendant’s sentence and resentence him in that situation. (Id., subd. (c).) Resentencing “shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (Id., subd. (d)(1).)

The question we must decide is whether section 1172.75 requires resentencing when a defendant such as Wilkens has sustained prior prison term enhancements under section 667.5(b) but the trial court struck their punishment at the time of sentencing. Pending direction from the California Supreme Court, we follow the reasoning of the majority opinion in Espino, supra, 104 Cal.App.5th 188, review granted, and conclude that it does.

Reviewing the meaning of section 1172.75 de novo, Espino, supra, 104 Cal.App.5th 188, review granted, determined the statute “should be interpreted according to the ordinary meaning of the word ‘impose’ and therefore [should apply] whenever a prison prior is included in a judgment, whether the prior is executed, stayed, or punishment is struck.” (Id. at p. 194; see People v. Renteria (2023) 96 Cal.App.5th 1276, 1282 [enhancements that are included in the abstract of judgment, but then stayed, “were imposed”].)

While recognizing a defendant suffers no immediate adverse consequences when the punishment for his prison priors has been stricken, Espino found it significant that the enhancement remains on the judgment in that situation and “may adversely impact the defendant in other ways such as restricting the ability to accrue conduct credits or subjecting the defendant to additional punishment for future convictions.” (Espino, supra, 104 Cal.App.5th at p. In addition to granting review in Espino, which involved a request for resentencing where the punishment for a now-invalid prison prior enhancement had been stricken, the California Supreme Court has granted review to resolve a conflict among the courts of appeal regarding whether section 1172.75 applies where a now-invalid prison prior was imposed but stayed. (See People v. Rhodius (2023) 97 Cal.App.5th 38, review granted Feb.

21, 2024, S283169; People v. Christianson (2023) 97 Cal.App.5th 300, 311– 316, review granted Feb. 21, 2024, S283189; People v. Saldana (2023) 97 Cal.App.5th 1270, 1276–1279, review granted Mar. 12, 2024, S283547; People v. Mayberry (2024) 102 Cal.App.5th 665, review granted Aug. 14, 2024, S285853.)

201.) Espino held this potential for future adverse consequences is sufficient to trigger the protections afforded in section 1172.75. (Espino, supra, at p. 201.)

This case presents the same circumstance referenced by the Espino court. Because Wilkens’s prior prison term enhancements were imposed and only their punishment was stricken, the enhancement is still included in the judgment. For the reasons explained in Espino, we conclude Wilkens is therefore entitled to resentencing.

DISPOSITION The postjudgment order denying Wilkens’s petition is reversed and the matter is remanded for the trial court to recall his sentence and resentence him pursuant to the terms of section 1172.75.

GOODING, J.

WE CONCUR:

MOORE, ACTING P. J.

SANCHEZ, J.

Although we agree with the Espino majority’s rationale, we acknowledge the well-reasoned analysis of the dissent in that case and await the Supreme Court’s guidance on this issue.