Filed 4/23/25 P. v. Noriega 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082986 v. (Super.Ct.No. RIF127423) PETER PAUL NORIEGA, OPINION Defendant and Appellant.

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

Affirmed.

Jared G. Coleman, 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, James M. Toohey and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Peter Paul Noriega appeals from the trial court’s order finding him ineligible for recall of his sentence and resentencing under Penal Code section 1172.75.1 Defendant premised his eligibility on a one-year penalty enhancement term for a prior prison conviction (§ 667.5, subd. (b)) that was imposed, but stayed, at his original sentencing hearing, and which remained stayed nearly 17 years later. As we explain post, the trial court did not err in finding defendant ineligible for resentencing under the statute.

BACKGROUND In November 2006 a jury convicted defendant of attempted murder (§§ 187, subd. (a), 664; count 1), shooting at an occupied vehicle (§ 246; count 2), unlawful possession of a firearm (§ 12021, subd. (a)(1); count 3), active participation in a criminal street gang (§ 186.22, subd. (a); count 5), and burglary of a vehicle (§ 459; count 6). (People v. Noriega (Oct. 16, 2008, E042520) [nonpub. opn.].) The jury found the attempted murder was willful, deliberate, and premeditated (§ 1192.7, subd. (c)(8)), that defendant personally discharged a firearm in committing the offense (§ 12022.53, subd. (c)), and that defendant committed the offenses in counts 1, 2, and 3 for the benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant admitted prior conviction allegations stemming from a prior conviction for active gang participation, including a prior strike (§ 667, subds. (c) & (e)(1)), a prior serious felony (§ 667, subd. (a)), and a prison prior (§ 667.5, subd. b). (Noriega, supra, E042520.)

The trial court sentenced defendant to an aggregate indeterminate term of 55 years to life in prison, consecutive to a determinate term of seven years, plus other concurrent components to his sentence. (Noriega, supra, E042520.) In pertinent part, the court imposed a one-year enhanced term for defendant’s prison prior, but stayed its execution.

In October 2016 the trial court granted defendant’s petition for a writ of habeas corpus and dismissed his active gang participation conviction in count 5, in the interests of justice.

In December 2023 the trial court found defendant ineligible for recall and resentencing under section 1172.75. Defendant’s case was not argued separately, but the parties stipulated to incorporation in defendant’s court file of the records—including briefing, argument, and the trial court’s comments—in two lead cases earlier heard by the court regarding section 1172.75 resentencing eligibility.

In reaching the conclusion defendant was ineligible for relief, the court noted expressly that it had 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 (Renteria).

DISCUSSION Defendant contends he is entitled to recall of his sentence and resentencing under section 1172.75 despite the stay on the enhancement term for his prison prior. 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, namely: “If” 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

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

Similarly, in the uncodified preamble to the statute, the Legislature stated its intent expressly in a way incompatible with relief based on 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 executed 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”].)

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.