Filed 11/20/25 P. v. Eckstein 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G064464 v. (Super. Ct. No. 17CF0713) HERMAN BUSMO ECKSTEIN, OPINION Defendant and Appellant.

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

Robert V. Vallandigham, Jr., 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 Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Herman Busmo Eckstein appeals the denial of his petition to recall his sentence and resentence him pursuant to Penal Code section 1172.75.1 We reverse and remand for resentencing.

FACTS Eckstein pleaded guilty to second degree robbery in 2017. The trial court also found true that he had served a prior prison term for purposes of section 667.5, subdivision (b). The court sentenced Eckstein to an aggregate term of 12 years. It imposed a one-year sentence for the prior prison term but then struck that punishment for purposes of sentencing.

Eckstein petitioned for recall and resentencing pursuant to section 1172.75. Because punishments on his prison priors were stricken, the court ruled he was ineligible based on People v. Rhodius (2023) 97 Cal.App.5th 38, which our high court recently reversed in People v. Rhodius (2025) 17 Cal.5th 1050 (Rhodius).

DISCUSSION Eckstein contends the trial court erred in denying his resentencing petition based on section 1172.75. We agree.

In contrast to the punishment at issue in Rhodius, the sentencing court here did not stay but rather struck the prior prison enhancements. (Rhodius, supra, 17 Cal.5th at p. 1056.) The question before us is whether section 1172.75 entitles Johnson to a resentencing hearing even though the enhancements were stricken for the purposes of sentencing. Rhodius explicitly did not reach this question. (Rhodius, at p. 1066, fn. 2.)

We agree with defendant that he is entitled to resentencing pursuant to section 1172.75.

1 All statutory references are to this code.

A pre-Rhodius case on point convincingly concluded that section 1172.75 applies to enhancements which were stricken at sentencing, not just those that are imposed but stayed at sentencing. (People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 (Espino).) We agree with the Espino majority that there is no sound reason to differentiate between section 667.5 enhancements which have been stayed and those that have been stricken for purposes of sentencing. In each of these cases, the judgment still contains a now-invalid enhancement for a prior prison term. (Espino, at pp. 197–198, 201.) And a recent case followed Espino, concluding its reasoning was “bolstered by the Supreme Court’s recent decision in Rhodius.” (People v. Cota (2025) 112 Cal.App.5th 1118, 1133.)

DISPOSITION The postjudgment order denying Eckstein’s petition for recall and resentencing is reversed and the matter is remanded to the trial court for resentencing pursuant to the terms of section 1172.75. Upon conclusion of the new sentencing hearing, the trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

SCOTT, J.

WE CONCUR:

MOTOIKE, ACTING P. J.

GOODING, J.