People v. Mayberry

321 Cal.Rptr.3d 717

The PEOPLE, Plaintiff and Respondent,

v.Darryn MAYBERRY, Defendant and Appellant.

F085869

Court of Appeal, Fifth District.

Filed June 4, 2024

APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. (Super. Ct. No. F18904486)

William D. Farber, San Rafael, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Lewis A. Martinez, and Joseph M. Penney, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, Acting P. J.

The trial court found defendant Darryn Mayberry ineligible for resentencing under Penal Code¹ section 1172.75. It reasoned that the original sentence was "illegal" due to the section 667.5, former subdivision (b) enhancements² being imposed but stayed, the sentence was not appealed, and the court therefore did not have the "ability" to "go back in time and do anything about those illegal sentences." Defendant appealed from that ruling.

We conclude section 1172.75 applies to prior prison term enhancements that have been imposed and stayed. We reverse and remand for the trial court to recall defendant’s sentence and resentence him in compliance with section 1172.75.

PROCEDURAL BACKGROUND³

In a felony complaint filed July 9, 2018, defendant was charged with second degree robbery (§211). The complaint also alleged he previously suffered a juvenile adjudication and a serious felony conviction, both of which qualified as strike convictions under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served two separate prison terms (§ 667.5, former subd. (b)). The felonies underlying the prior prison term enhancement allegations did not constitute sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b). On July 23, 2018, defendant pled nolo contendere to the robbery charge and admitted both strike priors and both prior prison term enhancements.

At an August 22, 2018 hearing, the sentencing court struck one strike prior and imposed a doubled upper term of 10 years. Regarding the prior prison term enhancements, the court pronounced:

"The court is exercising discretion and staying imposition of those two one-year prison priors and striking those for purposes of sentencing only, so the total term is 10 years in the Department of Corrections."

An abstract of judgment was filed August 23, 2018. As to each of the two prior prison term enhancements, it listed "S" for stayed.

At the time defendant was sentenced, section 667.5, former subdivision (b) provided in part:

"[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed undersubdivision (h) of Section 1170 or when sentence is not suspended for any felony …."

In 2019, the Legislature enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) (People v. Cruz (2020) 46 Cal.App.5th 715, 720, 259 Cal.Rptr.3d 870), which amended the foregoing language (Stats. 2019, ch. 590, § 1). This revision became effective January 1, 2020. (People v. Winn (2020) 44 Cal.App.5th 859, 862, 257 Cal.Rptr.3d 885; see Cal. Const., art. IV, § 8, subd. (c)(1); People v. Henderson (1980) 107 Cal.App.3d 475, 488, 166 Cal. Rptr. 20.) Section 667.5, subdivision (b) now reads in part:

"[I]f the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code …." (Italics added.)⁴

In 2021, the Legislature enacted Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill No. 483) (People v. Christianson (2023) 97 Cal.App.5th 300, 309, 315 Cal. Rptr.3d 391, rev. granted Feb. 21, 2024, S283189 (Christianson)), the purpose of which was "to retroactively apply … Senate Bill [No.] 136 … to all persons currently serving a term of incarceration in jail or prison for the[ ] repealed sentence enhancements" (Stats. 2021, ch. 728, § 1). Senate Bill No. 483 added former section 1171.1 (Stats. 2021, ch. 728, § 3), which became effective January 1, 2022. (Christianson, at p. 305, 315 Cal.Rptr.3d 391). "Effective June 30, 2022, the Legislature renumbered section 1171.1 to 1172.75" without any substantive changes. (Christianson, at p. 305, fn. 2, 315 Cal.Rptr.3d 391, citing Stats. 2022, ch. 58, § 12.) Section 1172.75 reads in part:

"(a) Any 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 as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.

"(b) The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and shall provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement…. [¶] … [¶]

"(c) Upon receiving the information described in subdivision (b), the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant…. [⁵] [¶] … [¶] "(d)(1) Resentencing pursuant to this section 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. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.

"(2) The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

"(3) The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice."

Defendant was identified by the Department of Corrections and Rehabilitation as an inmate serving a term for a judgment that included a prior prison term enhancement, and claimed he was eligible for resentencing pursuant to section 1172.75.

After the parties filed briefs, an eligibility hearing was conducted on March 1, 2023. There, the trial court remarked:

"[W]e go to subdivision [(d) of section 1172.75] which talks about the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination. So if I’m eliminating nothing, how is that resulting in a lesser sentence. Because it’s adding nothing. So if I take nothing away, it still is the same number. So it's not resulting in anything less because it’s not there.

"So it’s my - I guess my issue is that this sentence - this legislation does not give this Court the proper direction to include stayed or imposed sentences. It only talks about imposed that adds time to a person’s sentence. And in [defendant’s matter] it’s not added…. [T]he argument that it’s there, and therefore, we should qualify is not persuasive to me. It’s not convincing me."

Thereafter, the court concluded:

"[T]he Court finds [defendant is] not eligible for resentencing pursuant to the new rules of [section] 1172.75. That even though [he] had prison priors added at the time of the original sentencing, each of those enhancement[s] had been improperly stayed. However, the time has long passed for any appeal on these illegal sentences. And therefore, the Court does not believe that it now has the ability to go back in time and do anything about those illegal sentences. Nor do[es] [defendant] qualify under the language of [section] 1172.75."

On appeal, defendant does not contest the conclusion that the original sentence was both unauthorized because of the stayed prior prison term enhancements, and final because it was not appealed. He asserts section 1172.75 statutorily conferred jurisdiction on the trial court to resentence him. He argues that section 1172.75 applies to imposed prior prison term enhancements that are stayed. He argues the trial court should have recalled his sentence, struck his prior prison term enhancements, and resentenced him. The Attorney General argues section 1172.75 applies when the prior prison term enhancements are imposed and executed, but not when they are imposed and stayed. He asserts section 1172.75 does not therefore apply and the trial court lacked jurisdiction to recall defendant’s sentence and resentence him.

DISCUSSION

I. Staying the two prior prison term enhancements was error.

[1] "Once the prior prison term is found true within the meaning of section 667.5[, former subdivision](b), the trial court...