People v. Saldana ( 2023 )

Filed 12/19/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C097966
Plaintiff and Respondent, (Super. Ct. No. CR20111630)
v.
SILVERIO SALDANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Yolo County, Peter M.
Williams and Paul K. Richardson, Judges. Sentence vacated and remanded for
resentencing.
Richard L. Fitzer, 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, Senior Assistant Attorney General, Julie A. Hoskans,
Supervising Deputy Attorney General, Henry J. Valle, Deputy Attorney General, for
Plaintiff and Respondent.
1
In 2013, a jury found defendant Silverio Saldana guilty of possession for sale of a
controlled substance (Health & Saf. Code, § 11378) and he was sentenced to 25 years to
life in state prison as a three strikes offender. At the time, the trial court imposed and
stayed four prior prison term enhancements found true under Penal Code section 667.5,
subdivision (b).1 Defendant appealed, and we affirmed the judgment in People v.
Saldana (Jan. 8, 2015, C074302) (nonpub. opn.).2
Nearly a decade later, defense counsel moved to strike the four prior prison term
enhancements under section 1172.75 and requested a full resentencing under that statute
and People v. Buycks (2018) 5 Cal.5th 85. The trial court applied section 1172.75 to
strike the previously stayed enhancements but declined to conduct a full resentencing due
to the enhancements’ status as stayed.
On appeal, the parties initially agreed, as did we, that the trial court erred in failing
to conduct a full resentencing after striking the prior prison term enhancements. We
vacated the sentence and remanded for a full resentencing proceeding.
The Attorney General, representing the People, timely filed a petition for
rehearing, indicating that the concession was presented in error, and informing this court
that this same issue was pending in another appellate court with more extensive briefing.
We granted rehearing and ordered supplemental briefing with the issues just brought to
our attention in mind, asking the parties to brief the following questions:
1. Do any (or all) of the four stayed one-year prior prison term enhancements
at issue in this case constitute an unauthorized sentence? (See, inter alia, People v.
Langston (2004) 33 Cal.4th 1237, 1241[“[o]nce the prior prison term is found true within
1 Further undesignated statutory references are to the Penal Code.
2 We granted the Attorney General’s motion to incorporate the record in People v.
Saldana, C074302.
2
the meaning of section 667.5, [subd.](b), the trial court may not stay the one-year
enhancement, which is mandatory unless stricken”].)
2. Assuming the stayed enhancements constitute an unauthorized sentence,
how (if at all) does the stayed enhancements’ status as unauthorized factor into the
analysis of whether the trial court was required to conduct a full resentencing at the time
of the enhancements’ striking pursuant to section 1172.75?
3. Setting aside their unauthorized nature, did the status of the enhancements
as stayed affect defendant’s entitlement to a full resentencing under the relevant statute;
in other words, is a defendant with a stayed section 667.5, subdivision (b) enhancement
generally entitled to a full resentencing under section 1172.75?
We received and considered the parties’ briefing on these issues and reach the
same conclusion as we did initially: that defendant is entitled to a full resentencing on
remand. Because the trial court declined to provide a full resentencing, we vacate the
sentence and remand.
In reaching this conclusion, we note that the case the Attorney General referenced
in his rehearing petition was recently decided in a published opinion rejecting the
Attorney General’s position, which we later discuss in more detail. (See People v.
Christianson (Nov. 17, 2023, D081330) __ Cal.App.5th __ [2023 Cal.App. Lexis 888]
(Christianson).)
Further, as of this writing, two additional cases on the issue of a defendant’s
entitlement to resentencing under section 1172.75 where the (now invalid) enhancements
were imposed and stayed have been published by our sister courts. In People v. Renteria
(2023) 96 Cal.App.5th 1276 (Renteria), the Attorney General conceded, and the appellate
court agreed, that the trial court erred when it failed to provide defendant with the
opportunity for a full resentencing under the same circumstances presented here. In
People v. Rhodius (2023) 97 Cal.App.5th 38 (Rhodius), the appellate court concluded the
defendant was not entitled to resentencing because the now invalid enhancements were
3
stayed after imposition, and therefore were not “imposed” as required by section 1172.75
for resentencing eligibility.
The Christianson court disagreed with Rhodius in a footnote; the Rhodius court
did not mention Renteria.
Here, the Attorney General agrees that section 1172.75 applies to warrant striking
the stayed enhancements but argues to limit the application of the statute to exclude the
provision requiring a full resentencing. Alternatively, in oral argument the Attorney
General’s representative also agreed with the holding of the Rhodius court. We disagree
with these positions, as we explain post.
BACKGROUND
We omit a summary of the facts underlying defendant’s conviction because they
are not relevant to the issue raised on appeal.
In January 2023, after the Department of Corrections and Rehabilitation had
referred defendant to the trial court as having a judgment with one or more qualifying
priors, defendant filed a motion for resentencing under section 1172.75, which provides
in relevant part 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 as defined in subdivision (b) of
Section 6600 of the Welfare and Institutions Code is legally invalid.” (§ 1172.75, subd.
(a).) Defendant also requested that the trial court conduct a full resentencing hearing to
revisit all its sentencing choices. The prosecution opposed the motion, arguing section
1172.75 did not apply to the stayed prior prison term enhancements.
At a hearing in February 2023, the trial court struck the previously stayed prior
prison term enhancements (§ 1172.75, subd. (a)), but found that it was not permitted to
conduct a full resentencing hearing under section 1172.75, subdivision (d). The court
opined that striking a stayed enhancement did not trigger a reopening of sentencing as
would an unstayed enhancement. Defendant timely appealed.
4
DISCUSSION
I
The Stayed Enhancements as Unauthorized
When defendant was originally sentenced in 2013, the trial court imposed and then
stayed the four one-year prior prison term enhancements found true under section 667.5,
subdivision (b).3 Although never brought to the attention of the trial or appellate courts
prior to the instant appellate proceeding, the parties now agree, as do we, that the trial
court stayed the enhancements in error, resulting in an unauthorized sentence. (See
People v. Langston, supra, 33 Cal.4th at p. 1241 [trial court required to impose or strike
one-year prior prison term enhancement, but it could not stay the one-year term].)
Defendant argues the enhancements’ stayed status and the resulting illegality of
the sentence does not affect his entitlement to a full resentencing following the
enhancements’ striking. He reasons that “[b]ecause they still could have been imposed,
improperly stayed enhancements [that] had not yet been corrected should be treated no
differently than those for which sentence was not stayed.” The Attorney General agrees
that “the unauthorized nature of [defendant’s] 2013 sentence does not affect the analysis
of whether the trial court was required to conduct a full resentencing . . . at the time of
striking the enhancements.”
Notably, the Attorney General does not disagree with the notion that the
enhancements, whether stayed or unstayed, are no longer valid pursuant to the changes in
the relevant law. And he agrees that “the trial court here correctly vacated the invalid
enhancements” in response to defendant’s request for resentencing under section
3 Although not necessarily dispositive to the issue presented here, we note that the
enhancements are reflected in the abstract of judgment, with their respective terms noted
as stayed. (See Christianson, supra, 2023 Cal.App. Lexis 888, pp. *9-*14; Renteria,
supra, 96 Cal.App.5th at p. 1282.)
5
1172.75. However, the Attorney General also cites People v. Gonzales (2008) 43 Cal.4th
1118 (Gonzales) to argue that defendant “is not eligible for resentencing under section
1172.75 because no additional term of punishment was added at the time of sentencing.”
(Italics added.) These positions, as defendant points out, are inconsistent. When
considered together, they amount to an argument for partially applying section 1172.75
and its ameliorative effect to defendant solely because of the (improperly) stayed status
of his enhancements.4
As explained more fully below, we reject the Attorney General’s argument
regarding the limits of the new law, finding it unpersuasive. Either section 1172.75
applies to defendant or it does not. We agree with both parties as well as our sister courts
in Renteria, supra, 96 Cal.App.5th 1276 and Christianson, supra, __ Cal.App.5th __
[2023 Cal.App. Lexis 888], that the section 667.5, subdivision (b) enhancements to
defendant’s sentence must be stricken under section 1172.75. Because the statute
mandates striking the now invalid enhancements, the statute by its express terms--backed
by supportive case law--also requires that defendant receive a full resentencing.
4 We also note that the Attorney General’s position--advocating for partial application of
section 1172.75--differs from the holding in Rhodius, supra, 97 Cal.App.5th 38, where
the appellate court took the position that the statute does not apply to the stayed
enhancements at all, rather than that the statute requires the enhancements be stricken but
does not require that defendants seeking relief be provided with a full resentencing. (Id.
at pp. 41-43.) At oral argument, the Attorney General’s representative clarified that he
continues to take the position articulated in his briefing in the instant case, but that he
also agrees in relevant part with the Rhodius decision. His primary point appears to be
that a defendant with stayed section 667.5, subdivision (b) enhancements is not eligible
for a full resentencing under section 1172.75, subdivision (d), regardless of whether that
defendant is properly before the trial court pursuant to section 1172.75, subdivision (a).
6
II
The Stayed Enhancements as Unexecuted
Section 1172.75 expressly provides that if a judgment includes a qualifying prior
prison term enhancement, the trial court shall recall the sentence and resentence the
defendant. (§ 1172.75, subd. (c).) At any such resentencing, the court shall “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.” (§ 1172.75,
subd. (d)(2).)
“By its plain terms, section 1172.75 requires a full resentencing, not merely that
the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022)
85 Cal.App.5th 393, 402; see also People v. Buycks, supra, 5 Cal.5th at p. 893 [“when
part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing
as to all counts is appropriate, so the trial court can exercise its sentencing discretion in
light of the changed circumstances’ ”].)
Citing the 2008 case of Gonzales, supra, 43 Cal.4th 1118, the Attorney General
argues the statute’s requirement that the enhancements be “imposed” actually requires
that they be imposed and executed, which defendant’s enhancements had not yet been at
the time of the hearing at issue since they remained stayed. However, as we have
previously explained, the Attorney General does not disagree that defendant’s imposed
enhancements were rendered “legally invalid” as described by the statute and thus
properly before the trial court for striking. (§ 1172.75, subd. (a).) The Attorney General
provides no explanation or analysis of how the new law both permits the striking
mandated by section 1172.75, subdivision (a), and yet precludes the full resentencing
required by subdivisions (c) and (d). As previously explained, this was not the holding in
the Rhodius decision. (See fn. 4, infra.)
“As the Supreme Court has observed, ‘it is important to understand that the word
“impose” applies to enhancements that are “imposed and then executed” as well as those
7
that are “imposed and then stayed.” ’ ([Gonzalez, supra,] 43 Cal.4th [at p.] 1125.)”
(Renteria, supra, 96 Cal.App.5th at p. 1282.) Gonzales concerned contradictory
subdivisions of section 12022.53, dealing with gun enhancements. Our high court
decided that the use of “imposed” within one of the subdivisions was in fact shorthand
for “imposed and executed” as to that particular statutory scheme, construed as such in
order to harmonize the obvious conflict between section 12022.53, subdivisions (f) and
(h), one of which limited “imposition” of certain multiple enhancements and one of
which precluded their striking. (Gonzales, supra, 43 Cal.4th at p. 1126; see § 12022.53,
subds. (f), (h).) This is not a situation where any statutory subdivisions contradict one
another such that resolution of any perceived “ambiguity” is required, despite the
Attorney General’s argument to the contrary. Gonzales is not on point here.
Even were we to find ambiguity in the Legislature’s use of “imposed” in the non-
contradictory statutory scheme here, there appears another key difference between the
instant situation and that in Gonzales, where the court observed the Legislature’s stated
intent in passing the legislation at issue there was to ensure lengthier prison sentences for
firearm use. (Gonzalez, supra, 43 Cal.4th at p. 1129.) Here, the intent was the opposite.
As observed by the appellate court in Christianson, supra, __ Cal.App.5th __
[2023 Cal.App. Lexis 888, pp. *18-*19]: “The statutory scheme at issue here involves
statutory amendments expressly aimed at reducing sentences by retroactively eliminating
a sentencing enhancement described as exacerbating ‘existing racial and socio-economic
disparities in our criminal justice system.’ (Sen. Rules Com., Analysis of Sen. Bill No.
136 (2019–2020 Reg. Sess.), as amended Sept. 3, 2019, p. 5; see also Stats. 2021, ch.
728, § 1 [‘in order to ensure equal justice and address systemic racial bias in sentencing,
it is the intent of the Legislature to retroactively apply . . . Senate Bill 136 . . . to all
persons currently serving a term of incarceration in jail or prison for these repealed
sentence enhancements’].) Consistent with that intent, the other provisions of the statute
require that the trial court conduct a full resentencing for those defendants impacted by
8
the now invalid enhancement in light of all associated sentencing reform.
Specifically, section 1172.75, subdivision (d)(2) requires the trial court to 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.’ Subdivision
(d)(3) further permits the trial court to consider a broad range of postconviction factors
‘and evidence that reflects that circumstances have changed since the original sentencing
so that continued incarceration is no longer in the interest of justice.’ (§ 1172.75, subd.
(d)(3).) Thus, it appears the Legislature intended to provide broad relief to all defendants
impacted by the now invalid section 667.5, subdivision (b) enhancements.”
Although the appellate court in Rhodius, supra, 97 Cal.App.5th at pages 41 to 43,
repeatedly posits that defendants serving sentences with stayed enhancements will not be
subject to a lesser sentence (as the Legislature intended) if their enhancements are
stricken, we disagree. 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. “When a punishment is stayed,
as opposed to stricken, the trial court retains the ability to lift the stay and impose the
term under certain circumstance, such as if an alternately imposed term is invalidated. . . .
Thus, a stayed sentence enhancement remains as part of the judgment and continues to
carry 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, 2023 Cal.App. Lexis 888, p. *16.)
The Attorney General’s remaining arguments conflate defendant’s eligibility for
recall and resentencing under section 1172.75 with his eligibility for a full resentencing
after his imposed enhancements are stricken. For example, the Attorney General
repeatedly points out that released prisoners are not eligible for relief under the statute, so
not every person who has a now invalid enhancement attached to their sentence is eligible
for resentencing. While true, this is irrelevant to the argument that this incarcerated
9
defendant, who undisputedly has now invalid enhancements included in his conviction of
record, is eligible for some relief (striking of the enhancements) but not for all relief (full
resentencing) directed by the plain language of the statute and supporting case law,
merely because his enhancements were (illegally) stayed. We see no authority for
selectively applying the statute’s various requirements.
Defendant was entitled to a full resentencing under the terms of section 1172.75,
including the application of “any other changes in law that reduce sentences or provide
for judicial discretion . . . .” (§ 1172.75, subd. (d)(2).) To correct this error, we shall
remand for a full resentencing hearing. (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391 [defendants are entitled to sentencing decisions based on court’s informed
discretion; when a trial court is unaware of the scope of its discretionary powers, it cannot
exercise the requisite informed discretion].)
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing consistent
with section 1172.75 and all current sentencing statutes that apply to defendant.
/s/
Duarte, J.
We concur:
/s/
Earl, P. J.
/s/
Horst, J.
 Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
10