People v. Jackson CA2/3 ( 2024 )

Filed 10/21/24 P. v. Jackson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B335437
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA145595)
v.
GARRY WAYNE JACKSON IV,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Debra Cole-Hall, Judge. Reversed and
remanded with directions.
Maggie Shrout, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Lauren N. Guber, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Defendant and appellant Garry Wayne Jackson IV appeals
from an order denying his request for a full resentencing hearing
pursuant to Penal Code section 1172.75.1 The trial court struck
three one-year prison priors under section 667.5, subdivision (b),
but denied Jackson’s request for a full resentencing hearing on
the ground that his original sentence was the result of a plea
bargain. The People concede that a full resentencing hearing is
required. We reverse and remand with directions to the trial
court to conduct a full resentencing hearing pursuant to
section 1172.75.
FACTUAL AND PROCEDURAL BACKGROUND
In 2019, Jackson pled no contest to second degree robbery
(§ 211). He admitted to personally using a firearm (§ 12022.53,
subd. (b)), taking property valued at more than $65,000
(§ 12022.6, subd. (a)(1)), and suffering three prior prison terms
(§ 667.5, subd. (b)). Pursuant to the plea agreement, the court
sentenced Jackson to a state prison term of 19 years, consisting of
5 years for the robbery conviction, 10 years for the gun
enhancement, 1 year for the property allegation, and 3 years for
the prison priors.
In October 2023, the trial court conducted a resentencing
hearing pursuant to section 1172.75. The court struck the three
prison priors from Jackson’s sentence under section 667.5,
subdivision (b), resentenced him to 16 years, and ordered the
1 All further undesignated statutory references are to the
Penal Code.
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clerk to prepare an amended abstract of judgment. The court
denied Jackson’s request for a full resentencing hearing, finding
it lacked jurisdiction to further modify the sentence because the
conviction was the result of a plea agreement.
Jackson timely appealed.
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 as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code is legally invalid.”
Pursuant to a mechanism set forth in section 1172.75,
subdivisions (b) to (d), the sentencing court is directed to recall
sentences that include now invalid section 667.5, subdivision (b)
enhancements and resentence the defendants. Under
section 1172.75, subdivision (d)(2), in resentencing a defendant,
the court is to “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.”
The parties agree that the trial court erred in this case by
not conducting a full resentencing hearing. We accept the
People’s concession. We agree with several other courts that
have held that in section 1172.75 cases involving a sentence
reached by plea, “ ‘the resentencing court has jurisdiction to
modify every aspect of the sentence, and not just the portion
subjected to the recall.’ [Citation.]” (People v. Coddington (2023)
96 Cal.App.5th 562, 568 (Coddington); accord, People v.
Hernandez (2024) 103 Cal.App.5th 981, 988, 990, review granted
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Oct. 2, 2024, S286527; People v. Montgomery (2024) 100
Cal.App.5th 768, 773, review granted May 29, 2024, S284662
(Montgomery); People v. Carter (2023) 97 Cal.App.5th 960, 968;
People v. Monroe (2022) 85 Cal.App.5th 393, 401–402.) On
remand, the trial court is to conduct a full resentencing hearing
in accordance with section 1172.75.
The People additionally assert that, should Jackson seek
any further reduction of his sentence on remand, the People must
be allowed to withdraw from the plea agreement, citing
Coddington, supra, 96 Cal.App.5th 562. As the parties recognize,
there is currently a split of authority on this issue. (Compare
Coddington, at pp. 569–572 with Montgomery, supra, 100
Cal.App.5th at pp. 773–777, review granted.) The issue is
pending before the California Supreme Court.
In this case, the trial court has yet to conduct a full
resentencing hearing. It remains to be seen whether the court
will decide to further reduce Jackson’s sentence. We therefore
decline to reach the issue of whether, in the event the trial court
intends to further reduce the sentence, the People may withdraw
from the plea agreement.
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DISPOSITION
The order is reversed, Jackson’s sentence is vacated, and
the matter is remanded to the trial court for a full resentencing
hearing in accordance with section 1172.75.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
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