People v. Epps CA4/2 ( 2024 )

Filed 10/11/24 P. v. Epps CA4/2
See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082642
v. (Super.Ct.No. RIF1100036)
CHARLES NATHAN EPPS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
David M. McKinney, 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, Melissa A. Mandel and Joseph
C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
1
At a resentencing hearing pursuant to Penal Code section 1172.75,1 the court
denied defendant and appellant Charles Nathan Epps’s motion to strike his prior prison
term enhancements. On appeal, defendant contends this court should reverse the order
and remand the matter to the trial court with directions to hold a full resentencing
hearing. We affirm.2
I. PROCEDURAL BACKGROUND
On December 12, 2011, a jury convicted defendant of assault with intent to
commit rape (§ 220, count 1) and battery by a prisoner on a nonprisoner (§ 4501.5,
count 2). In a bifurcated proceeding thereafter, defendant admitted having suffered three
prior strike convictions (§ 667, subds. (c) & (e)(2)(A)) and four prior prison terms
(§ 667.5, subd. (b)). The court sentenced him to prison for 25 years to life; the court
imposed but stayed sentence on the prior prison term enhancements.
1 All further statutory references are to the Penal Code.
2 In our original tentative opinion, we proposed to dismiss the appeal for lack of
jurisdiction because defendant had failed his burden of producing a record that
established the proceeding below was initiated by the California Department of
Corrections and Rehabilitation (CDCR). (People v. Cota (2023) 97 Cal.App.5th 318, 332
[“[S]ection 1172.75 does not authorize a defendant to seek resentencing on his or her
own motion or petition. Rather the process is triggered by the [CDCR] identifying a
defendant as a person serving a sentence that includes a prior prison term enhancement.
[Citation.]”]; accord, People v. Newell (2023) 93 Cal.App.5th 265, 268; accord, People v.
Burgess (2022) 86 Cal.App.5th 375, 382.) In response, appellate counsel filed a motion
to augment the record with documents reflecting that the proceedings were initiated by a
list of persons identified by the CDCR as eligible for section 1172.75 relief. We granted
the motion, withdrew our tentative opinion, and permitted the parties to file supplemental
briefing.
2
On November 15, 2023, at a hearing at which defendant was represented by
counsel, the court denied defendant’s request for resentencing pursuant to section
1172.75. The court based its ruling on this court’s decision in People v. Rhodius (2023)
97 Cal.App.5th 38 (Rhodius), review granted February 21, 2024, S283169.
II. DISCUSSION
Defendant contends this court should reverse and remand the matter with
directions to the trial court to hold a full resentencing hearing. The People maintain we
should affirm the trial court’s order in reliance on Rhodius. We affirm.
Senate Bill No. 483 (Sen. Bill 483) (2021-2022 Reg. Sess.) added section 1171.14
to the Penal Code (Stats. 2021, ch. 728), which the legislature subsequently renumbered,
without substantive change, as section 1172.75 (Stats 2022, ch. 58, § 12, eff. June 30,
2022). (Rhodius, supra, 97 Cal.App.5th at p. 42.) “Section 1172.75, subdivision (a),
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.’ [Citation.] Section
1172.75 instructs the CDCR to identify those persons in their custody currently serving a
term for a judgment that includes an enhancement under section 667.5(b) (excluding
sexually violent offenses) and provide such information to the sentencing court that
imposed the enhancement. [Citation.] Subsequently, the sentencing court ‘shall review
the judgment and verify that the current judgment includes a sentencing enhancement
described in subdivision (a).’ [Citation.] ‘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.’ [Citation.]” (Ibid.)
“Section 1172.75 subdivision (d)(1)’s requirement that the resentencing shall
result in a lesser sentence than the one originally imposed necessitates the conclusion that
the repealed enhancement increased the length of the sentence. The only way for the
repealed enhancement to have increased the length of a sentence is for the enhancement
to have been imposed and executed. If the repealed enhancement was imposed and
stayed, the sentence would not have been increased, as was the case here. To interpret
‘imposed’ as used in section 1172.75, subdivision (a), to include when a sentence was
‘imposed and stayed’ would require any sentencing court faced with an ‘imposed and
stayed’ enhancement to arbitrarily lower a sentence simply because the judgment
contained a stayed enhancement.” (Rhodius, supra, 97 Cal.App.5th at p. 44; contra,
People v. Renteria (2023) 96 Cal.App.5th 1276, 1282-1283 [Defendant entitled to full
resentencing hearing where section 667.5 enhancement was imposed and stayed]; accord,
People v. Christianson (2023) 97 Cal.App.5th 300, 316, fn. 8., review granted Feb. 21,
2024, S283189; accord, People v. Saldana (2023) 97 Cal.App.5th 1270, 1278, review
granted Mar. 12, 2024, S283547; accord, People v. Mayberry (2024) 102 Cal.App.5th
665, 674, review granted Aug. 14, 2024, S285853; accord, People v. Espino (2024) 104
Cal.App.5th 188, 196; see People v. Gray (2024) 101 Cal.App.5th 148, 167 & fn. 14
[“Other courts to have considered this question have focused on the meaning of the term
‘imposed,’ and have disagreed with Rhodius.”].)
4
Here, like in Rhodius, the trial court imposed but stayed punishment on the prior
prison term enhancements. Thus, since striking the prior prison term enhancements
would not result in a lesser sentence than the one originally imposed as required by
section 1172.75, subdivision (d)(1), the court properly denied defendant’s motion.
(Rhodius, supra, 97 Cal.App.5th at p. 44; Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
Defendant argues that we are not bound by Rhodius. However, “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.) Rhodius is a decision of this appellate
division.
Nonetheless, defendant essentially argues that the majority view of the appellate
courts set forth in Renteria, Christianson, and Saldana comprise a “compelling reason” to
depart from this court’s decision in Rhodius.3 We disagree.
In analyzing the legislative history of Senate Bill 483, this court in Rhodius
observed that the legislature was primarily concerned with providing relief to those who
had served time on rulings deemed unfair, on separating inmates from their families, and
on the costs to the state of incarceration. (Rhodius, supra, 97 Cal.App.5th at pp. 46-48.)
“The findings, costs, and ramifications of . . . Senate Bill 483 cited during the legislative
sessions presuppose inmates who are serving additional time as a result of the sentencing
3 Mayberry and Espino were decided after briefing in this case.
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enhancement under section 667.5[, subdivision] (b). The references to financial and
familial burdens do not logically follow if a defendant is not actually serving additional
time as the result of an imposed and executed sentence associated with a section 667.5[,
subdivision] (b) prior. As such, to interpret the statute to include enhancements that were
imposed and stayed would be contrary to the legislative intent and the plain language of
the statute.” (Id. at pp. 48-49.)
Here, since the court did not execute sentence on the prior prison term
enhancements, striking those enhancements would not promote the legislative concerns
in passing Senate Bill 483; in other words, striking the enhancements would not provide a
lessened term for defendant, would not enable him to reunify with his family, and would
not result in any cost savings to the state. We continue to agree with this court’s decision
in Rhodius and disagree with the courts in Renteria, Christianson, Saldana, Mayberry,
and Espino.
III. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
I concur:
MILLER
J.
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[People v. Epps, E082642]
MENETREZ, J., dissenting:
I am persuaded by the analysis in People v. Christianson (2023) 97 Cal.App.5th
300, review granted February 21, 2024, S283189, and similar cases. I consequently
disagree with the approach taken by People v. Rhodius (2023) 97 Cal.App.5th 38, review
granted February 21, 2024, S283169. Because review is pending in all of the relevant
cases, they have “no binding or precedential effect, and may be cited for potentially
persuasive value only.” (Cal. Rules of Court, rule 8.1115(e)(1).) Because I agree with
Christianson and similar cases, I would reverse and remand for resentencing under Penal
Code section 1172.75, subdivision (d).
MENETREZ
J.
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