People v. Zamora CA6 ( 2024 )

Filed 9/12/24 P. v. Zamora CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050959
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. C1650184, C1760640,
C1764491)
v.
EZEKIAL ZAMORA,
Defendant and Appellant.
In the trial court Ezekial Zamora moved for resentencing under Penal Code
section 1172.75 on the ground that his sentence included an enhancement for a prior
prison sentence—or “prison prior”—that is no longer valid. (Subsequent undesignated
statutory references are to the Penal Code.) The trial court denied the motion on the
ground that punishment for the prison prior was struck. Following this district’s recent
opinion in People v. Espino (2024) 104 Cal.App.5th 188 (Espino), we conclude that the
trial court erred. Section 1172.75 requires resentencing where a now-invalid prison prior
was imposed, whether punishment for the prior was executed, stayed, or struck.
Accordingly, we reverse and remand with directions to conduct resentencing.
I. BACKGROUND
Because the facts concerning Zamora’s offenses are not relevant to the issues on
this appeal, we omit those facts and only discuss the procedural background.
Zamora was charged in three separate Santa Clara County proceedings. First, in
docket No. C1650184, he was charged with a single count of inflicting corporal injury on
the mother of his child. Second, in docket No. C1760640, Zamora was charged with two
counts of vehicle theft with a prior conviction and one count of driving with a suspended
license. Even more important for purposes of this appeal, the complaint in the second
proceeding also alleged a prison prior (for vehicle theft) under section 667.5,
subdivision (b). Third, in docket No. C1764491, Zamora was charged with fourteen
counts: nine counts of second degree robbery, one count of attempted second degree
robbery, one count of grand theft, one count of attempted grand theft, one count of
battery, and one count of child endangerment. In connection with four of the robbery
counts, the complaint alleged that Zamora used a dangerous weapon (a knife).
On February 22, 2018, Zamora pleaded no contest to all counts and admitted all
allegations in the second and third proceedings—including the prison prior allegation in
the second proceeding—and the trial court provided an indicated sentence that Zamora
would receive an aggregate sentence of eight years in state prison. Four days later,
Zamora pleaded no contest to the one count in the first proceeding.
In May 2018, the trial court sentenced Zamora in the three proceedings, imposing
an aggregate sentence of eight years in state prison. The court used the first robbery
count in the third proceeding as the principal term and on that count imposed an upper-
term sentence of five years. The trial court also imposed consecutive one-year terms on
three other robbery counts from that proceeding. For the remaining counts, including the
vehicle theft counts in the second proceeding, the court imposed concurrent sentences
ranging from two to five years. Finally, the trial court imposed enhancements for
Zamora’s prison prior and for the use of a deadly weapon but struck punishment for the
enhancements.
In March 2023, Zamora moved for resentencing, arguing based on intervening
changes in the law that he was entitled to resentencing under section 1172.75 because his
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sentence included a now-invalid prison prior. Neither the prosecutor in the trial court nor
the Attorney General on appeal has denied that the California Department of Corrections
identified Zamora as an individual serving a sentence containing a now-invalid prison
prior. Nevertheless, the prosecutor opposed Zamora’s motion, and the trial court denied
resentencing. The trial court reasoned that section 1172.75 authorizes resentencing only
where a now-invalid prison prior was both imposed and executed. Although the section
declares invalid most prison priors “imposed” before January 1, 2020 (§ 1172.75,
subd. (a)), the trial court noted that the term “imposed” may be used as a shorthand for
sentences that are both imposed and executed, and it concluded that section 1172.75
should be interpreted to use the term “imposed” in this manner based on other provisions
in the section, and the Legislature’s stated intent.
Zamora subsequently filed a timely notice of appeal.
II. DISCUSSION
Zamora argues that the trial court erred in denying his motion for resentencing
because a prison prior is “imposed” under section 1172.75 if it was included in a
judgment, whether punishment for the prior was executed, stayed, or struck. The
Attorney General responds that a prison prior was “imposed” under section 1172.75 only
if the prior was both imposed and executed. Reviewing this question of statutory
interpretation de novo (People v. Renteria (2023) 96 Cal.App.5th 1276, 1281-1282
(Renteria)), we agree with Zamora.
When first enacted, section 667.5, subdivision (b) required that a one-year
enhancement be imposed for each prior prison term served (and was later amended to
include jail terms served under section 1170, subdivision (h)), unless the defendant
remained free of custody for at least five years. (Stats. 1976, ch. 1139, § 268; see
Renteria, supra, 96 Cal.App.5th at p. 1282; People v Jennings (2019) 42 Cal.App.5th
664, 681.) In 2019, the Legislature amended section 667.5, subdivision (b) to allow
enhancements for prior prison terms only for sexually violent offenses. (Stats. 2019,
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ch. 590, § 1.) Two years later, Senate Bill No. 483 (2021-2022 Sess.) (Sen. Bill 483)
made this change retroactive by enacting what is now section 1172.75. (Stats. 2021,
ch. 728, § 3; see also Stats. 2022, ch. 58, § 12 [moving provision to § 1172.75,
subd. (a)].) Section 1172.75 states 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.” (§ 1172.75, subd. (a).)
Section 1172.75 requires the Secretary of the Department of Corrections and
Rehabilitation and county correctional administrators to identify any individual in their
custody “currently serving a term for a judgment that includes an enhancement described
in subdivision (a)” (§ 1172.75, subd. (b)) and the sentencing court to verify that “the
current judgment includes a sentencing enhancement described in subdivision (a)”
(§ 1172.75, subd. (c)). If the sentencing court verifies that the judgment against an
individual includes a now-invalid prison prior, the individual’s sentence is recalled, and
the individual is resentenced. (Ibid.) In resentencing, the court is required to apply any
changes in the law reducing sentences or providing judicial discretion (§ 1172.75,
subd. (d)(2)), and resentencing must result in a “lesser sentence,” unless such a sentence
would endanger public safety (§ 1172.75, subd. (d)(1)).
People v. Espino, supra, 104 Cal.App.5th 188, a decision from this district,
concluded, albeit over a dissent, that section 1172.75 requires resentencing where, as
here, prison priors were imposed but punishment was struck. We follow the Espino
decision’s reasoning, which, for the sake of convenience, is recounted below largely
verbatim.
There is a split over whether section 1172.75 requires resentencing where a prison
prior was imposed but stayed. The majority of decisions addressing this situation have
concluded that resentencing is required. A decision from this district first held that
resentencing is required where a prison prior was imposed but punishment was stayed.
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(See Renteria, supra, 96 Cal.App.5th at pp. 1282-1283.) Subsequent decisions from the
Third, Fourth and Fifth Districts agreed. (People v. Mayberry (2024) 102 Cal.App.5th
665, 673-676 (Mayberry) [Fifth District]; People v. Saldana (2023) 97 Cal.App.5th 1270,
1272-1273, review granted Mar. 12, 2024, S283547 (Saldana) [Third District]; People v.
Christianson (2023) 97 Cal.App.5th 300, 314, review granted Feb. 21, 2024, S283189
(Christianson) [Fourth District].) One decision from the Fourth District disagreed.
(People v. Rhodius (2023) 97 Cal.App.5th 38, 40-41, 45, 48-49, review granted Feb. 21,
2024, S283169) (Rhodius).) The Supreme Court has granted review of three of these
decisions. (Rhodius, supra, 97 Cal.App.5th 38; Christianson, supra, 97 Cal.App.5th 300;
Saldana, supra, 97 Cal.App.5th 1270.)
Following the weight of authority, we interpret section 1172.75 to apply when a
prison prior was imposed but stayed. We also conclude that section 1172.75 applies
where a prison prior was imposed but punishment was struck. Section 1172.75 requires
courts to resentence any individual whose “current judgment includes an enhancement
described in subdivision (a)” (§ 1172.75, subd. (c)), which declares invalid “[a]ny
sentence enhancement that was imposed” for a prior prison term not involving a sexually
violent offense (§ 1172.75, subd. (a)). In the context of an obligation or penalty, the
ordinary and usual meaning of the word “impose” is “to make, frame, or apply (as a
charge, tax, obligation, rule, penalty) as compulsory, obligatory or enforc[ea]ble.”
(Webster’s 3d New Internat. Dict. (1993) p. 1136, col. 1; see also American Heritage
Dict. (5th ed. 2011) p. 883, col. 2 [defining “impose” to mean “establish or apply as
compulsory” or “bring about by authority or force”].) As a consequence,
section 1172.75, subdivision (a) is naturally understood to declare invalid any
enhancement for a prior prison term (not involving a sexually violent offense) that was
made or applied and included in the judgment against the defendant, without regard to
whether punishment for the prison prior was executed, stayed, or struck. Under this
interpretation, Zamora’s prison prior was imposed upon him and rendered invalid under
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section 1172.75 because, even though punishment was struck, the prison prior was
included in the judgment against him.
The Supreme Court has recognized that the term “impose” may be interpreted
more narrowly. In particular, the Court observed, “impose” may be “employed as
shorthand” to refer to enhancements that were imposed and then executed. (People v.
Gonzalez (2008) 43 Cal.4th 1118, 1125.) The Attorney General contends that
section 1172.75 uses “impose” in this narrow sense. In support of this position, the
Attorney General points to the section’s requirement that resentencing ordinarily “result
in a lesser sentence than the one originally imposed.” (§ 1172.75, subd. (d)(1).) The
sentence for an enhancement, the Attorney General argues, cannot be reduced if the
punishment was stayed or struck and therefore section 1172.75 should be interpreted to
declare invalid only prison priors that were imposed and executed. Most decisions to
consider this argument have rejected it. (Mayberry, supra, 102 Cal.App.5th at pp. 673-
676; Saldana, supra, 97 Cal.App.5th at p. 1278, rev.gr.; Christianson, supra, 97
Cal.App.5th at p. 312, rev.gr.) We do so as well.
As these decisions recognize, even when punishment for an enhancement is
stayed, the enhancement carries “the potential for an increased sentence in certain
circumstances, and removal of the stayed enhancement does provide some relief to the
defendant by eliminating that potential.” (Christianson, supra, 97 Cal.App.5th at p. 312,
rev.gr.) In particular, when a prison prior or other enhancement is imposed but stayed,
the trial court retains the ability under certain circumstances to lift the stay and execute
the stayed term. (Ibid.; see also Mayberry, supra, 102 Cal.App.5th at p. 674 [“Imposed-
but-stayed prison prior term enhancements carry the possibility of execution.”]; Saldana,
supra, 97 Cal.App.5th at p. 1278, rev.gr. [“The presence of a stayed term or enhancement
is not without significance; it is part of the sentence and remains available if its execution
becomes necessary and proper for any legally sanctioned reason.”].) In addition, if a
defendant is resentenced, a stay might not be reimposed. (See People v. Cortez (2016) 3
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Cal.App.5th 308, 316 [in resentencing after a sentence is recalled, “[a] court may also
impose a previously stayed sentence”].) Thus, even when a prison prior was stayed,
elimination of the prison prior reduces the potential sentence facing the defendant and
therefore results in a “lesser” sentence than the one originally imposed. (Mayberry,
supra, 102 Cal.App.5th at pp. 674-675; Christianson, supra, 97 Cal.App.5th at p. 312;
Saldana, supra, 97 Cal.App.5th at p. 1278.)
If the Legislature had intended to limit section 1172.75 to prison priors that were
imposed and executed, it could have done so clearly and unequivocally. (Christianson,
supra, 97 Cal.App.5th at p. 313, rev.gr.) Section 1172.75 expressly differentiates
between inmates “currently serving a sentence based on the enhancement” for a prison
prior (§ 1172.75, subd. (c)(1)) and inmates with a judgment that merely “includes an
enhancement” for a prison prior (§ 1172.75, subd. (b) [requiring correctional officials to
identify individuals serving terms for judgments including enhancements]; § 1172.75,
subd. (c) [requiring courts to verify that identified judgments include prison priors]). In
particular, section 1172.75 requires correctional officials to prioritize inmates currently
serving time based on a prison prior and to identify them to sentencing courts several
months before identifying those merely serving a term for a judgment including a prison
prior. (§ 1172.75, subd. (c)(1), (c)(2).) If the Legislature had intended the term “impose”
to apply only to those inmates upon whom a prison prior was imposed and executed, it
similarly could have limited resentencing under section 1172.75 to those inmates serving
(whether currently or not) a sentence based on a prison prior. The Legislature did not do
so. Instead, it declared invalid “any enhancement imposed” for a prison prior not
involving a sexually violent offense without requiring execution of the enhancement
(§ 1172.75, subd. (a)) and provided for resentencing of any individual with “a current
judgment that includes a [now-invalid] sentencing enhancement” (§ 1172.75, subd. (c),
italics added), without requiring that the individual be serving a term based on such an
enhancement. This omission “suggests that the Legislature intended to use the term
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‘impose’ in the broader sense” and to include prison priors that were imposed but stayed.
(Christianson, supra, 97 Cal.App.5th at p. 313.)
This same reasoning applies to prison priors that were imposed but punishment
was struck. The Legislature’s use of the term “impose” in section 1172.75 without any
qualification or indication that it is limited to prison priors imposed and executed
suggests that the Legislature used the term in its ordinary (and unlimited) sense. As
shown above, the ordinary meaning of the word “impose” encompasses all prison priors
that were made and therefore included in a judgment, whether punishment was executed,
stayed, or struck. In addition, as Zamora points out, even when an enhancement was
imposed but punishment struck, “[t]he fact of the enhancement . . . remain[s]” 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. (In re Pacheco (2007) 155 Cal.App.4th 1439, 1444; see also People v.
Fuentes (2016) 1 Cal.5th 218, 225-226 [“even if the punishment is struck, an
enhancement finding could impact defendant in a future case”].) While it is unclear what
adverse impact a prison prior may have when punishment is struck, we cannot be sure
that a prison prior has no potential detrimental impact in that situation. We therefore
conclude that, where a prison prior was imposed but punishment was struck, a sentence
entirely omitting the prior is a “lesser” sentence under section 1172.75.
The Attorney General also argues that, where a prison prior was imposed but
punishment struck, resentencing would not further the purposes of section 1172.75. The
Attorney General contends that the section has two purposes: reducing the impact of
increased sentences due to enhancements on minority communities and freeing up
funding for community-based services. However, in at least some cases where
punishment was struck resentencing would serve these purposes: In resentencing under
section 1172.75, courts are required not only to strike punishments for now-invalid prison
priors, but also to “apply any other changes in law that reduce sentences” (§ 1172.75,
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subd. (d)(2)), which may reduce sentences even where no punishment for a now-invalid
prison prior was imposed, thereby furthering the purposes identified by the Attorney
General. Even more important, it is doubtful that the Legislature had only two purposes
in enacting what is now section 1172.75. As our Supreme Court has recognized,
“[l]egislation is frequently ‘ “the product of multiple and somewhat inconsistent purposes
that led to certain compromises.” ’ [Citations.]” (People v. Hardin (2024) 15 Cal.5th
834, 854.) Among other things, the Legislature may choose to pursue a primary
objective or set of objectives by adopting rules that are simple and easy to administer but
somewhat overinclusive—such as applying section 1172.75 to all now-invalid prison
priors that were imposed, without regard to whether punishment was executed, stayed, or
struck. None of the evidence of legislative intent to which the Attorney General points
excludes that possibility. We therefore decline to infer an implicit execution requirement
into the word “impose” and instead follow the ordinary meaning of the term in
interpreting section 1172.75 to apply to all now-invalid prison priors that were imposed
and included in the judgment against a defendant.
Zamora argues that his resentencing should cover his full sentence even though the
sentences for the charges in the proceeding in which the prison prior was imposed (the
second one involving vehicle theft) have been completed. The Attorney General agrees,
and so do we. Although Zamora was charged in three separate proceedings, the trial
court imposed a single aggregate sentence. The Penal Code expressly authorizes
sentencing for multiple felonies in different proceedings. (§ 1170.1, subd. (a)
[authorizing sentencing for two or more felonies “whether in the same proceeding court
or in different proceedings or courts”].) As the Supreme Court has recognized, in such a
sentencing, “enhancements for prior convictions do not attach to particular counts.”
(People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v.
Ewoldt (1994) 7 Cal.4th 380.) Instead, enhancements attach to the sentence as a whole
and “are added just once as the final step in computing the total sentence.” (Ibid., fn.
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omitted) Consequently, even though Zamora has served the sentences imposed for the
convictions in the proceeding where the prison prior was alleged, Zamora is entitled to a
resentencing covering all matters addressed in his original sentence.
III. DISPOSITION
The order denying Zamora’s petition for resentencing is reversed. The matter is
remanded to the trial court, which is directed to recall Zamora’s sentence and resentence
him consistent with this opinion, Penal Code section 1172.75, and current law.
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____________________________
BROMBERG, J.
I CONCUR:
____________________________________
BAMATTRE-MANOUKIAN, ACTING P. J.
People v. Zamora
H050959
Lie, J., Dissenting:
For the reasons I stated in People v. Espino (2024) 104 Cal.App.5th 188, 202–206 (dis. opn. of
Lie, J.), I respectfully dissent.
_____________________________________
LIE, J.
People v. Zamora
H050959