Filed 10/30/25 P. v. Olvera CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083233 v. (Super.Ct.No. RIF118400) DAVID ARENAS OLVERA, JR., OPINION Defendant and Appellant.

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

Reversed and remanded.

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, Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant David Arenas Olvera, Jr., 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 appeal returns to us on transfer from the Supreme Court to reconsider the cause in light of People v. Rhodius (2025) 17 Cal.5th 1050 (Rhodius).

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former § 667.5, subd. (b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, we therefore reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing.

BACKGROUND In 2005, a jury convicted defendant of assault with a deadly weapon (§ 245, subd. (a)(1)) and stalking (§ 646.9, subd. (a)), and found he personally used a knife (§ 12022, subd. (b)(1)) in committing the assault. The jury subsequently also found defendant’s prior convictions included two strikes within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)), a serious felony prior (§ 667, subd. (a)(1)), and a prison prior (§ 667.5, subd. (b)). At defendant’s sentencing hearing in June 2005 the court imposed a prison term of 56 years to life, which included five years for the serious felony prior. The court also imposed a one-year enhanced term for defendant’s prison

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

prior, but stayed execution of this portion of his sentence. Defendant appealed and a panel of this court affirmed the judgment. (People v. Olvera (Mar. 16, 2007, E038469) [nonpub. opn.].) The facts underlying defendant’s offense, involving stalking and stabbing his girlfriend’s husband, are not relevant to the issues on appeal.

In December 2023 the trial court held a hearing to determine whether defendant was entitled to resentencing under section 1172.75. The court concluded he was ineligible under the statute. On appeal, a divided panel of this court affirmed the trial court’s ruling. (People v. Olvera (Jan. 1, 2025, E083233) [nonpub. opn.].) We subsequently vacated that decision following Rhodius, and the parties waived supplemental briefing regarding Rhodius’s application DISCUSSION Section 1172.75, subdivision (a), provides 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.” Section 1172.75, subdivision (b), requires the Secretary of the California Department of Corrections and Rehabilitation and county jail administrators 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 individuals “to the sentencing court that imposed the enhancement.”

Upon receiving that information, the trial court “shall recall the sentence and resentence the defendant” if the court “determines that the current judgment includes an enhancement described in subdivision (a).” (§ 1172.75, subd. (c).) If the court determines that the individual’s judgment includes such an enhancement, the defendant’s 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.” (§ 1172.75, subd. (d)(1).)

Rhodius held that “section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.” (Rhodius, supra, 17 Cal.5th at p. 1054.)

Here, defendant’s judgment included a stayed prior prison term enhancement that was imposed before 2020. It was not for a sexually violent offense. Under Rhodius, the stay the original sentencing court entered on the prior prison enhancement does not preclude defendant from resentencing under section 1172.75. We therefore reverse and remand the matter for the trial court to hold that hearing.

DISPOSITION The trial court’s order denying defendant resentencing under section 1172.75 is reversed. The matter is remanded for the court to recall defendant’s sentence, hold a resentencing hearing pursuant to section 1172.75, subdivision (d), and resentence defendant consistent with the statute.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RAMIREZ P. J.

RAPHAEL J.