People v. Walker CA2/1 ( 2024 )

Filed 10/3/24 P. v. Walker CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B334454
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA033786)
v.
WALTER EARL WALKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Allen Joseph Webster, Jr., Judge. Reversed.
Sydney Banach, 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, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
In 1996, a jury convicted Walter Earl Walker of murder
and assault. When sentencing Walker, the trial court imposed
and stayed two Penal Code1 section 667.5, subdivision (b) prior
prison term enhancements. The Legislature subsequently
deemed invalid enhancements “imposed” pursuant to section
667.5, subdivision (b) unless imposed for a sexually violent
offense. Section 1172.75 creates a procedure for resentencing
persons sentenced to the now invalid enhancements.
This appeal is from the trial court’s order denying Walker a
resentencing hearing because the section 667.5, subdivision (b)
enhancements were imposed and stayed, as opposed to imposed
and executed. On appeal, the parties dispute whether
section 1172.75 applies to enhancements that were imposed but
stayed. Recognizing this issue is currently before our high court,2
we follow the weight of appellate authority holding a defendant
whose sentence includes a section 667.5, subdivision (b)
enhancement that has been imposed and stayed is entitled to a
full resentencing hearing. Accordingly, we reverse the order
denying Walker a resentencing hearing.
BACKGROUND3
By information filed September 8, 1995, the People charged
Walker with the murder of Miguel Galarza and an assault with a
firearm on E. Macedo. The People alleged Walker personally
1 Undesignated statutory citations are to the Penal Code.
2 See Discussion, post.
3 Although our record does not include a transcript of the
trial, the facts underlying Walker’s offenses are irrelevant to the
legal issue before us.
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used a firearm. The People alleged two section 667.5,
subdivision (b) enhancements.
The jury convicted Walker of murder and assault and found
true the personal use of a firearm as to both convictions. The
court also found true the two 667.5, subdivision (b)
enhancements.
In 1996, the court sentenced Walker to a total term of
37 years 4 months to life. The court imposed and stayed a
one-year term for each 667.5, subdivision (b) enhancement.
In 2023, the Department of Corrections and Rehabilitation
(CDCR) notified the Superior Court that Walker was possibly
eligible for resentencing based on the section 667.5,
subdivision (b) enhancements. The resentencing trial court found
Walker was not eligible for resentencing because the trial court
had stayed sentence on the section 667.5, subdivision (b)
enhancements. Walker did not file a timely notice of appeal, but
we court granted him relief to file a belated notice of appeal.
DISCUSSION
A sentence enhancement is an “ ‘ “additional term of
imprisonment added to the base term.” ’ [Citation.]” (People v.
Gonzalez (2008) 43 Cal.4th 1118, 1124.) Before January 1, 2020,
section 667.5, subdivision (b) required that trial courts impose a
one-year sentence enhancement for each prior prison or county
jail term the defendant served if the defendant had not remained
free of custody for the preceding five years. (§ 667.5, former
subd. (b); People v. Jennings (2019) 42 Cal.App.5th 664, 681
(Jennings).)
Effective January 1, 2020, Senate Bill No. 136 (2019–2020
Reg. Sess.) (Senate Bill No. 136) amended section 667.5,
subdivision (b), by limiting the enhancement to prior prison
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terms for sexually violent offenses. (§ 667.5, subd. (b); Jennings,
supra, 42 Cal.App.5th at p. 681.) “By eliminating section 667.5,
subdivision (b) enhancements for all prior prison terms except
those for sexually violent offenses, the Legislature clearly
expressed its intent in Senate Bill No. 136 (2019–2020 Reg. Sess.)
to reduce or mitigate the punishment for prior prison terms for
offenses other than sexually violent offenses.” (Jennings, supra,
at p. 682.) In 2021, the Legislature enacted Senate Bill No. 483
(2021–2022 Reg. Sess.) (Senate Bill No. 483), which made Senate
Bill No. 136’s changes to the law retroactive (Stats. 2021, ch. 728,
§ 1), and added former section 1171.1, now section 1172.75, to the
Penal Code. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.)
Section 1172.75 provides in relevant 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 . . . 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
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judgment includes an enhancement described in subdivision (a),
the court shall recall the sentence and resentence the
defendant. . . .
[¶] . . . [¶]
“(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.” (§ 1172.75, italics added.)
The parties dispute whether the term “imposed” in
subdivision (a) includes enhancements that were imposed and
stayed or instead, applies only to enhancements that are imposed
and executed. Appellate courts have disagreed on this issue,
which is pending before our Supreme Court. (See, e.g., People v.
Espino (2024) 104 Cal.App.5th 188 (Espino) [holding inter alia
§ 1172.75 applicable to sentence enhancements regardless of
whether the original trial court stayed the enhancement];4 People
v. Mayberry (2024) 102 Cal.App.5th 665, 672 [same], review
granted Aug. 14, 2024, S285853; People v. Saldana (2023)
97 Cal.App.5th 1270, 1276 [same], review granted Mar. 12, 2024,
S283547; People v. Christianson (2023) 97 Cal.App.5th 300, 309
(Christianson) [same], review granted Feb. 21, 2024, S283189;
4 The majority in Espino also held that section 1172.75
applies to a section 667.5, subdivision (b) enhancement that the
original trial court had stricken. (Espino, supra, 104 Cal.App.5th
at p. 194, petn. for review pending, petn. filed Sept. 19, 2024,
S286987 [324 Cal.Rptr.3d 377, 382–383].) We express no opinion
on whether that holding is correct.
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People v. Rhodius (2023) 97 Cal.App.5th 38 [holding § 1172.75
applies only to executed sentence enhancements], review granted
Feb. 21, 2024, S283169.)
We agree with those appellate courts interpreting
section 1172.75 to include sentences for prison prior
enhancements that have been imposed and stayed, particularly
Christianson, supra, 97 Cal.App.5th 300, review granted.
Christianson explained that under section 1172.75,
subdivision (b), the CDCR is required to identify all inmates for
whom the section 667.5, subdivision (b) enhancements were
included in the abstract of judgment regardless of whether the
enhancements were stayed. (Christianson, supra, at p. 312.)
“Had the Legislature intended for the language in subdivision (b)
to limit the identification to those inmates that would necessarily
be required to serve an additional term based on the
enhancement, it certainly could have done so.” (Ibid.) “It does
not follow logic or reason to read these two subdivisions together
in a manner that would require the CDCR to identify a larger
class of inmates—all those serving time on a judgment that
include a now invalid enhancement—only for the trial courts to
then look at the same abstracts of judgment available to the
CDCR to determine whether the previous court imposed
additional time for, or stayed, the relevant enhancements.”
(Ibid.)
Christianson further explained that the Legislature
intended to “provide broad relief to all defendants impacted by
the now invalid section 667.5, subdivision (b) enhancements.”
(Christianson, supra, 97 Cal.App.5th at p. 314, review granted.)
Because “the Legislature chose to mandate a full resentencing for
those individuals impacted by a now invalid section 667.5,
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subdivision (b) enhancement,” Christianson discerned “no reason
to differentiate between defendants serving an additional term
based specifically on a now invalid enhancements and those for
whom the enhancement was imposed but stayed. In both
instances, the presence of the enhancement was one component
considered by the sentencing court in pronouncing the overall
sentence.” (Christianson, supra, at p. 315.)
Respondent argues Christianson was wrongly decided
because it relied on People v. Jones (1993) 5 Cal.4th 1142 and
People v. Brewer (2014) 225 Cal.App.4th 98 “to conclude the
Legislature was aware of a trial court’s authority to stay
section 667.5(b) enhancements and, by not providing a ‘carveout’
for such stayed enhancements, intended for section 1172.75 to
apply to both executed and stayed enhancements.” According to
respondent, Jones and Brewer considered “other provisions of
law” and did not consider the “Legislature’s use of ‘imposed’ in
section 667.5(b).”
We agree with respondent insofar as respondent argues
neither Jones nor Brewer considered the meaning of the term
“imposed” in section 1172.75, subdivision (a), the resentencing
statute at issue before us. We, however, do not agree that
Christianson’s reliance on those cases undermines Christianson’s
holding that section 1172.75 includes section 667.5,
subdivision (b) enhancements that were imposed and stayed.
First, Christianson relied on Brewer to reject respondent’s
argument that a stayed enhancement never results in additional
punishment. (Christianson, supra, 97 Cal.App.5th at p. 312,
review granted.) Citing Brewer, Christianson explained that a
trial court “retains the ability to lift the stay and impose the term
under certain circumstance, such as if an alternately imposed
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term is invalidated.” (Ibid.) Respondent does not dispute that a
trial court retains the ability to impose a stayed term under
certain circumstances.
Second, Christianson referred to Brewer and Jones in
discussing whether the trial court in that case erred in
administratively striking the section 667.5, subdivision (b)
enhancement rather than resentencing the defendant.
(Christianson, supra, 97 Cal.App.5th at pp. 315–316, review
granted.) The trial court in Christianson reasoned it should
strike the enhancement because “the general rule that ‘once the
prison prior is found true, it must be imposed or stricken, not
stayed’ . . . .” (Id. at p. 315.) In other words, staying the
enhancement was unauthorized. In response, the appellate court
observed there are statutory exceptions to the general rule.
(Ibid.) Christianson cited Jones and Brewer as “authority
suggesting that section 667 allows for a stay in cases in which
there is both a section 667 serious felony prior enhancement and
a section 667.5, subdivision (b) enhancement based on the same
underlying conviction.” (Christianson, supra, at pp. 315–316.)
Christianson then held the trial court erred in administratively
striking the section 667.5, subdivision (b) priors rather than
resentencing the defendant. (Christianson, at p. 316.) Again,
these references to Brewer and Jones do not undermine our
reliance on Christianson where the trial court here did not strike
the section 667.5, subdivision (b) enhancements.
Respondent also contends our high court has interpreted
the term “imposed” in People v. Gonzalez (2008) 43 Cal.4th 1125–
1130 to mean “imposed and executed.” The Gonzalez court,
however, interpreted the term “imposed” as it appears in a
completely different statute, there section 12022.53,
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subdivision (f). Gonzalez recognized that “imposed” could
encompass an enhancement that was imposed and executed as
well as an enhancement that was imposed and then stayed, but
reasoned, “ ‘as a practical matter, the word “impose” is often
employed as shorthand to refer to the first situation, while the
word “stay” often refers to the latter.’ [Citation.]” (Gonzalez,
supra, at p. 1125.) Construing the term in the context of the
statutory scheme before it, Gonzalez held that “impose” in
section 12022.53, subdivision (f) means imposed and executed
and not imposed and stayed. (Gonzalez, at p. 1126.)
As Christianson recognized, Gonzalez was interpreting a
statute whose purpose was diametrically opposed to section
1172.75’s purpose to reduce sentences. As Gonzalez observed
regarding section 12022.53, subdivision (f), “the Legislature’s
stated intent was to ensure that “ ‘ “substantially longer prison
sentences must be imposed on felons who use firearms in the
commission of their crimes, in order to protect our citizens and to
deter violent crime.” [Citation.]’ [Citation.]” (Christianson,
supra, 97 Cal.App.5th at p. 313, review granted, italics added.)
In contrast, Senate Bill Nos. 136 and 483 were “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 [No.] 136 . . . to all persons currently
serving a term of incarceration in jail or prison for these repealed
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sentence enhancements’].)” (Christianson, at p. 314.)
Interpreting “imposed” broadly advances this goal. (See ibid.)
DISPOSITION
The order finding Walker ineligible for resentencing is
reversed. The case is remanded for a full resentencing hearing
pursuant to Penal Code section 1172.75, as to the section 667,
subdivision (b) enhancements that were imposed but stayed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
WEINGART, J.
KLINE, J.*
* Retired Presiding Justice of the Court of Appeal, First
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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