People v. Rivas CA4/1 ( 2024 )

Filed 10/16/24 P. v. Rivas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D083391
Plaintiff and Respondent,
v. (Super. Ct. No. SCD185232)
HERIBERTO RIVAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Lisa R. Rodriguez, Judge. Request for judicial notice is denied. Reversed
and remanded with instructions.
Ava R. Stralla, under the 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, Robin
Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and
Respondent.
MEMORANDUM OPINION
This is yet another in a series of cases in which a defendant seeks a
full resentencing under Penal Code1 section 1172.75 where the trial court
previously imposed but stayed a prison prior enhancement pursuant to
section 667.5, subdivision (b). Whether resentencing is required in such cases
is presently pending review in the California Supreme Court.2 Following the
weight of published appellate authority, and specifically this court’s prior
opinion in Christianson, supra, 97 Cal.App.5th 300, we reverse with
instructions to conduct a full resentencing.
A. Factual Summary
In 2016, defendant Heriberto Rivas was found guilty of first degree
murder. Among other things, Rivas admitted he had suffered a serious
felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prison prior
(§ 667.5, subd. (b)) arising from the same felony conviction. A five-year
serious felony enhancement was imposed, and the prison prior enhancement
was stayed.
Effective January 1, 2022, former section 1171.1 (now section 1172.75)
was added to the Penal Code by 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 Further undesignated statutory references are to the Penal Code.
2 See 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, review granted Feb. 21, 2024, S283189 (Christianson); People v. Saldana
(2023) 97 Cal.App.5th 1270, review granted Mar. 12, 2024, S283547
(Saldana); People v. Mayberry (2024) 102 Cal.App.5th 665, review granted
Aug. 14, 2024, S285853 (Mayberry).
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1, 2020” pursuant to section 667.5, subdivision (b) are “legally invalid.”
(§ 1172.75, subd. (a).)
Pursuant to subdivision (b) of section 1172.75, the Department of
Corrections and Rehabilitation (CDCR) identified Rivas as a person currently
serving a prison term that included an enhancement imposed pursuant to
section 667.5, subdivision (b). After the court appointed counsel to represent
him, Rivas filed a motion to be resentenced. The court held a hearing but
issued a written order denying the motion. Relying on section 1172.75’s
legislative history and the Rhodius decision (97 Cal.App.5th 38), the court
concluded that Rivas was ineligible for relief because his prison prior did not
result in him serving any additional prison time.
B. Analysis
The proper interpretation of section 1172.75 in this context has now
been the subject of numerous conflicting published appellate opinions, and
the Supreme Court has now granted review in several cases to resolve the
conflict. In People v. Renteria (2023) 96 Cal.App.5th 1276, 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, at p. 1282.) The Sixth Appellate District reversed, holding that
“imposed” enhancements include not only those imposed and executed, but
also those that are imposed and stayed. (Ibid., quoting People v. Gonzalez
(2008) 43 Cal.4th 1118, 1125 (Gonzalez).)
In Rhodius, a different division of our court reached the opposite
conclusion, relying heavily on Gonzalez, supra, 43 Cal.4th 1118, in which the
Supreme Court interpreted the word “imposed” as used in section 12022.53,
subdivision (f), to mean imposed and executed. Examining section 1172.75
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as a whole, the Rhodius court observed that 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 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 create a significant financial
burden for state taxpayers. (Rhodius, at pp. 46–47.)
Decided only four days after Rhodius, this court’s opinion in
Christianson rejected a narrow interpretation of section 1172.75 and held
that the statute 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
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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 as applying to
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
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 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
1172.75.3 (Christianson, at p. 316.)
Since the filing of our opinion in Christianson, several other courts
have filed published opinions agreeing with Renteria and Christianson,
but declining to follow Rhodius. (See Saldana, supra, 97 Cal.App.5th at
pp. 1276–1279, review granted; Mayberry, supra, 102 Cal.App.5th 665,
review granted; People v. Espino (2024) 104 Cal.App.5th 188, 195–198.)
“We see no good reason to reject the weight of authority interpreting section
1172.75” including our own decision in Christianson. (Espino, at p. 196.)
3 We deny Rivas’s request for judicial notice of certain legislative history
materials as unnecessary to the disposition of this appeal. (See Salmon
Protection & Watershed Network v. County of Marin (2012) 205 Cal.App.4th
195, 209, fn. 13.)
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“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 court, and the People have not
provided us with a compelling reason to reconsider it. 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 Rivas whose abstracts of judgment include
one or more section 667.5, subdivision (b) enhancements that were previously
imposed but stayed. Rivas 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).)
DISPOSITION
The order denying Rivas’s motion for resentencing is reversed and the
matter is remanded to the trial court with instructions to grant the motion,
recall Rivas’s sentence, and resentence him consistent with section 1172.75
and current law.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
BUCHANAN, J.
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