People v. Oduno CA4/1 ( 2024 )

Filed 10/1/24 P. v. Oduno CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083043
Plaintiff and Respondent,
v.
(Super. Ct. No. SCN370712)
GIOVANY ODUNO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Lisa R. Rodriguez, Judge. Reversed and remanded with instructions.
Alex Kreit, 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, Collette
C. Cavalier, and Maxine Hart, Deputy Attorneys General, for Plaintiff and
Respondent.
MEMORANDUM OPINION
Giovany Oduno appeals the denial of his motion for resentencing under
Penal Code1 section 1172.75. Because the trial court’s ruling was based on
an erroneous interpretation of section 1172.75, we reverse and remand for
full resentencing.
In 2017, a jury convicted Oduno of residential burglary. (§§ 459, 460,
subd. (a).) The trial court found true that Oduno had a prison prior (§ 667.5,
subd. (b)), a serious felony prior (§§ 667, subd. (a)(1) & 1192.7, subd. (c)), and
a strike prior (§§ 667, subds. (b)–(i) & 1170.12). At sentencing, the court
imposed a prison term totaling 13 years and struck the punishment for the
prison prior under section 667.5, subdivision (b). In 2019, Oduno was
resentenced after being convicted of residential burglary in another case.
The court reimposed the same sentence it had originally imposed, plus the
additional term from the new conviction to run consecutively. The court
reiterated that it was striking the punishment for the prison prior.
Effective January 1, 2022, section 1172.75 was added to the Penal Code
by virtue of the passage of Senate Bill No. 483 (2021–2022 Reg. Sess.).
(Stats. 2021, ch. 728, § 3.) With one exception not applicable here,
section 1172.75 provides that prison prior enhancements “imposed prior to
January 1, 2020” pursuant to section 667.5, subdivision (b) are “legally
invalid.” (§ 1172.75, subd. (a).) It directs the Department of Corrections
(CDCR) to identify those persons in custody “currently serving a term for a
judgment that includes an enhancement described in subdivision (a) . . . to
the sentencing court that imposed the enhancement.” (Id., subd. (b).) Upon
receiving this information, “[i]f the court determines that the current
1 Further undesignated statutory references are to the Penal Code.
2
judgment includes an enhancement described in subdivision (a), the court
shall recall the sentence and resentence the defendant.” (Id., subd. (c).)
“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 a lesser sentence would endanger public
safety. (Id., subd. (d).)
The CDCR identified Oduno as a person currently serving a prison
term that included an enhancement imposed pursuant to section 667.5,
subdivision (b). After appointing counsel to represent Oduno, the court held
a hearing in September 2023 and denied Oduno’s petition. In a short minute
order, the court noted that Oduno’s prison prior “was struck” both at his 2017
sentencing and again at his 2019 resentencing. The court reasoned that
because the prison prior was not part of his current sentence, and because
Oduno was “not currently serving a prison term that includes the imposition
of any prison priors,” he was ineligible for relief.
The dispositive issue presented in Oduno’s appeal is whether the trial
court erred in its interpretation of section 1172.75. He contends it did, and
that the statute affords relief to all defendants whose sentences include a
prior prison term enhancement, whether it was imposed and executed or
imposed and stayed. The People contend the court did not err, because
section 1172.75 applies only to those defendants whose prior prison term
enhancements were imposed and executed. On our de novo review of this
issue (People v. Lewis (2021) 11 Cal.5th 952, 961), and consistent with this
court’s prior decisions on the issue, we conclude Oduno has the better
argument. Accordingly, we will reverse the order and remand for full
resentencing.
3
Since the trial court denied Oduno’s petition, the proper interpretation
of section 1172.75 in this context has been the subject of conflicting published
appellate opinions, and our Supreme Court has granted review to resolve the
conflict. (People v. Renteria (2023) 96 Cal.App.5th 1276, 1282–1283; People v.
Rhodius (2023) 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169
(Rhodius); People v. Christianson (2023) 97 Cal.App.5th 300, 311–316, review
granted Feb. 21, 2024, S283189 (Christianson); People v. Saldana (2023)
97 Cal.App.5th 1270, 1276–1279, review granted Mar. 12, 2024, S283547
(Saldana); People v. Mayberry (2024) 102 Cal.App.5th 665 (Mayberry), review
granted Aug. 14, 2024, S285853; People v. Espino (2024) 104 Cal.App.5th 188(Espino).)
In Renteria, the trial court declined to apply section 1172.75 to the
defendant’s prior prison term enhancements on the ground that the word
“imposed” as used in subdivision (a) of section 1172.75 did not include
enhancements that were stayed. (Renteria, supra, 96 Cal.App.5th at
p. 1282.) The Sixth Appellate District reversed, holding that “imposed”
includes “enhancements that are imposed and then executed as well as those
that are imposed and then stayed.” (Ibid. [cleaned up].)
In Rhodius, a different division of our court reached the opposite
conclusion, relying heavily on People v. Gonzalez (2008) 43 Cal.4th 1118, 1126
(Gonzalez), in which the California Supreme Court interpreted the word
“imposed” as used in section 12022.53, subdivision (f), to mean imposed and
executed. Examining section 1172.75 as a whole, the Rhodius court observed
subdivision (d)(1) of section 1172.75 requires the trial court to impose a
“lesser sentence than the one originally imposed,” and reasoned the only way
the enhancement could affect the length of a sentence is if it had been
imposed and executed. (Rhodius, supra, 97 Cal.App.5th at pp. 43–44, review
4
granted.) It also found the legislative history of section 1172.75 demonstrates
“a clear presupposition by the Legislature of an imposed and executed
sentence,” including a legislative analysis that found sentencing
enhancements “put significant financial burdens on taxpayers and families
statewide.” (Rhodius, at pp. 46–47 [cleaned up].)
This court, in Christianson, rejected a narrow interpretation of
section 1172.75 and held that section 1172.75 applies to cases in which the
inmate’s abstract of judgment includes one or more section 667.5,
subdivision (b) enhancements that were previously imposed but stayed.
(Christianson, supra, 97 Cal.App.5th at p. 305, review granted.) Although we
considered the word “imposed” in section 1172.75, subdivision (a) to be “at
least somewhat ambiguous,” we concluded that in the context of the statutory
scheme, stated legislative intent, and statutory history, “imposed” was not
“limited to enhancements that were imposed and executed.” (Christianson, at
p. 311.) We observed that subdivision (a) of section 1172.75 requires the
CDCR to identify all inmates “ ‘currently serving a term for a judgment that
includes an enhancement described in subdivision (a),’ ” and that a judgment
“may include a sentence that has been imposed but suspended or stayed.”
(Christianson, at p. 311.) We found it illogical that the Legislature would
require the CDCR to identify a larger class of inmates based on the abstract
of judgment, only to have the trial court “then look at the same abstracts of
judgment available to the CDCR to determine whether” the enhancements
had been stayed. (Id. at p. 312.)
We also disagreed that if the statute were interpreted to encompass
stayed enhancements, this would create a conflict with subdivision (d)(1) of
section 1172.75. We explained that when a punishment is stayed, “the trial
court retains the ability to lift the stay and impose the term under certain
5
circumstance[s],” and that “removal of the stayed enhancement” therefore
“provide[s] some relief to the defendant by eliminating that potential.”
(Christianson, supra, 97 Cal.App.5th at p. 312, review granted.) And while in
Gonzalez, supra, 43 Cal.4th at page 1126, the California Supreme Court
interpreted the word “imposed” in section 12022.53, subdivision (f), to mean
imposed and executed, we did not find Gonzalez to be controlling. In our
view, the high court had interpreted “imposed” in the context of a statute
intended to ensure longer sentences for felons who use firearms, whereas
section 1172.75 was “expressly aimed at reducing sentences[.]”
(Christianson, at p. 314.) And we found the legislative history to be
consistent with our reading of section 1172.75. (Christianson, at p. 316.)
In Saldana, the Third Appellate District similarly concluded that
section 1172.75 broadly affords relief to all defendants with a now-invalid
section 667.5, subdivision (b) enhancement, regardless of whether execution
of the enhancement was stayed. In doing so, it relied on reasoning from
Christianson, and disagreed with the Rhodius court’s view that defendants
whose sentences include stayed enhancements would not be subject to a
lesser sentence if their enhancement was stricken. (Saldana, supra,
97 Cal.App.5th at pp. 1277, 1278, review granted.) The Fifth Appellate
District in Mayberry and the Sixth Appellate District in Espino also agreed
with Christianson. (Mayberry, supra, 102 Cal.App.5th at p. 675, review
granted; Espino, supra, 104 Cal.App.5th at pp. 194–201.)
Oduno asks us to interpret section 1172.75 as we did in Christianson to
include all cases in which the trial court imposed a prior prison term as a
6
part of the original judgment.2 In response, the People ask us to follow
Rhodius rather than Christianson, and hold that section 1172.75 does not
apply to an imposed and stayed section 667.5, subdivision (b) enhancement.
We decline the People’s request. “We see no good reason to reject the
weight of authority interpreting section 1172.75” including our own decision
in Christianson. (Espino, supra, 104 Cal.App.5th at p. 196.) “Absent a
compelling reason, the Courts of Appeal are normally loath to overrule prior
decisions from another panel of the same undivided district or from the same
division.” (Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9.) Christianson
is a decision of this appellate division, and the People have not provided us
with a compelling reason for reconsidering it. Although they assert that
Rhodius is the “better-reasoned analysis,” we were aware of Rhodius when
we decided Christianson and we expressly disagreed with the Rhodius court’s
interpretation of section 1172.75. (See Christianson, supra, 97 Cal.App.5th
at p. 316, fn. 8, review granted.)
Accordingly, we adopt the reasoning and holding of Christianson and
conclude that section 1172.75 affords relief to defendants like Oduno whose
abstracts of judgment include one or more section 667.5, subdivision (b)
enhancements that were previously imposed but stayed. Oduno is therefore
entitled to a recall of his sentence and full resentencing upon remand,
including the application of “any other changes in law that reduce sentences
or provide for judicial discretion.” (§ 1172.75, subd. (d)(2).)
2 Oduno also argues that a prison prior for which punishment was
stricken should be treated in the same manner as a prison prior for which
punishment has been stayed. We agree. (See Espino, supra, 104 Cal.App.5th
at p. 196 [holding that under section 1172.75, subdivision (a), any sentence
enhancement that was “imposed” should be interpreted to mean any
enhancement that the sentencing court “included in a judgment, whether
punishment for it was executed, stayed, or struck.”].)
7
DISPOSITION
The order denying Oduno’s motion for resentencing is reversed and the
matter is remanded to the trial court with instructions to grant the motion,
recall Oduno’s sentence, and resentence him consistent with section 1172.75
and current law.
BUCHANAN, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
8