People v. Mackey CA2/7 ( 2024 )

Filed 10/16/24 P. v. Mackey CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B334384
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA077059)
v.
DEMARIE RASHAD
MACKEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hayden Zacky, Judge. Reversed with
directions.
Lenore De Vita, 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, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, and Nikhil Cooper, Deputy Attorney General,
for Plaintiff and Respondent.
INTRODUCTION
In 2013 a jury convicted Demarie Rashad Mackey on
three counts of robbery. The trial court sentenced Mackey to a
prison term of 70 years to life (later reduced to 60 years to life).
The court also imposed and stayed execution of two one-year
prior prison term enhancements under Penal Code section 667.5,
former subdivision (b).1
In 2021 the Legislature enacted Senate Bill No. 483 (2021-
2022 Reg. Sess.), which declared enhancements under
section 667.5, subdivision (b), such as Mackey’s, legally invalid
and directed courts to resentence inmates with such now-invalid
enhancements. In 2023 the superior court struck the prior prison
term enhancements, but denied Mackey’s request to resentence
him, ruling Senate Bill No. 483 did not apply because the trial
court stayed execution of Mackey’s enhancements. Mackey
argues he is eligible for a full resentencing, and we agree.
Therefore, we reverse and direct the superior court to conduct a
full resentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Mackey of Robbery, and the Trial
Court Sentences Him
In 2013 a jury convicted Mackey on three counts of robbery
(§ 211). The trial court found true allegations Mackey had two
prior convictions for serious felonies, within the meaning of
section 667, subdivision (a)(1), and two prior serious or violent
1 Statutory references are to the Penal Code.
2
felony convictions, within the meaning of the three strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court also
found Mackey had served two prior prison terms, within the
meaning of section 667.5, former subdivision (b).
The trial court sentenced Mackey as a third strike offender
to an aggregate prison term of 70 years to life. On two of the
robbery convictions, the court imposed a sentence of 25 years to
life, plus 10 years for the two five-year enhancements under
section 667, subdivision (a)(1), and imposed and stayed execution
of two one-year prior prison term enhancements under
section 667.5, former subdivision (b). The court imposed and
stayed under section 654 execution of a prison term on the third
robbery conviction.
In Mackey’s direct appeal, we reversed one of the robbery
convictions, directed the trial court to correct a sentencing error,
and otherwise affirmed the judgment. (People v. Mackey (Dec. 21,
2015, B255595) [nonpub. opn.].) On remand the trial court
resentenced Mackey to an aggregate prison term of 60 years to
life. On each of the two remaining robbery convictions, the court
imposed a prison term of 25 years to life, plus five years under
section 667, subdivision (a)(1), and imposed and stayed execution
of two one-year prior prison term enhancements under
section 667.5, former subdivision (b).
B. The Superior Court Strikes Mackey’s One-year
Enhancements, but Otherwise Declines To Resentence
Him
In 2021 the Legislature declared prior prison term
enhancements under section 667.5, subdivision (b), imposed prior
to January 1, 2020 legally invalid, except those arising from
3
convictions for sexually violent offenses. The Legislature enacted
section 1172.75, which provided a mechanism for resentencing
inmates serving terms that included those now-invalid
enhancements. (§ 1172.75, subd. (a).) In November 2023 the
superior court vacated the true findings on Mackey’s
section 667.5, subdivision (b), enhancements. Acknowledging a
split in authority on “whether or not the defendant is entitled to
resentencing when the one-year prior has been imposed and
stayed,” the court concluded it would follow the holding of
People v. Rhodius (2023) 97 Cal.App.5th 38, review granted
February 21, 2024, S283169, and deny Mackey’s request for a full
resentencing. Mackey timely appealed.
DISCUSSION
A. Statutory Interpretation
“‘Our primary task “in interpreting a statute is to
determine the Legislature’s intent, giving effect to the law’s
purpose. [Citation.] We consider first the words of a statute, as
the most reliable indicator of legislative intent.”’” (People v.
McCallum (2020) 55 Cal.App.5th 202, 211.) “We give the words
their plain and commonsense meaning, while also considering the
context and framework of the entire statutory scheme and
keeping in mind its nature and purpose. [Citation.] ‘If the words
in the statute do not, by themselves, provide a reliable indicator
of legislative intent, “[s]tatutory ambiguities often may be
resolved by examining the context in which the language appears
and adopting the construction which best serves to harmonize the
statute internally and with related statutes.”’” (People v.
Christianson (2023) 97 Cal.App.5th 300, 308-309, review granted
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Feb. 21, 2024, S283189 (Christianson); see People v. Gonzalez
(2008) 43 Cal.4th 1118, 1126.) “We do not interpret the statute
so literally as to contravene the apparent legislative intent, ‘“‘and
if a statute is amenable to two alternative interpretations, the
one that leads to the more reasonable result will be followed.’”’”
(Christianson, at p. 309; see Gonzalez, at p. 1126.) “‘If the statute
is ambiguous, we may consider a variety of extrinsic aids,
including legislative history, the statute’s purpose, and public
policy.’” (Christianson, at p. 309; see Gonzalez, at p. 1126.) “The
proper interpretation of a statute is a question of law we review
de novo.” (People v. Lewis (2021) 11 Cal.5th 952, 961; see
Christianson, at p. 308.)
B. Section 1172.75
Before January 1, 2020, section 667.5, subdivision (b),
required the court to impose a one-year enhancement for each
prior prison term the defendant had served, unless the defendant
had remained free of custody for the preceding five years.
(§ 667.5, former subd. (b); Christianson, supra, 97 Cal.App.5th at
p. 309, review granted.) Effective January 1, 2020, Senate Bill
No. 136 (Stats. 2019, ch. 590, § 1) amended section 667.5 to limit
the enhancement to prior prison terms for sexually violent
offenses. (§ 667.5, subd. (b); Christianson, at p. 309.)
Effective January 1, 2022, Senate Bill No. 483 (Stats. 2021,
ch. 728, § 3) made the change retroactive. Senate Bill No. 483
added section 1171.1, later renumbered as section 1172.75, which
states: “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.” (§ 1172.75,
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subd. (a).) Section 1172.75 requires the Department of
Corrections and Rehabilitation and the county correctional
administrator to identify individuals serving terms that include
no-longer-valid enhancements and provide certain information
about those individuals “to the sentencing court that imposed the
enhancement.” (§ 1172.75, subd. (b).) “Upon receiving the
information,” the superior court, if it determines a judgment
includes an invalid enhancement, must “recall the sentence and
resentence the defendant.” (§ 1172.75, subd. (c).)
Section 1172.75, subdivision (d)(1), provides that
resentencing under the statute must “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.” Section 1172.75, subdivision (d)(2),
provides the court must “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 court may consider postconviction factors, including, but not
limited to, the disciplinary record and record of rehabilitation of
the defendant while incarcerated, evidence that reflects whether
age, time served, and diminished physical condition, if any, have
reduced the defendant’s risk for future violence, and evidence
that reflects that circumstances have changed since the original
sentencing so that continued incarceration is no longer in the
interest of justice.” (§ 1172.75, subd. (d)(3).)
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C. Mackey Was Entitled to Resentencing Under
Section 1172.75
Mackey argues the superior court erred in ruling that,
because his enhancement was stayed, he was not entitled to a full
resentencing under section 1172.75. The majority of courts that
have considered the issue (which is pending in the Supreme
Court) have held section 1172.75 applies to all enhancements
imposed under section 667.5, subdivision (b), whether executed or
stayed. We agree with those courts. (See, e.g., People v.
Mayberry (2024) 102 Cal.App.5th 665 [section 1172.75 applies to
prior prison term enhancements that were imposed and stayed],
review granted Aug. 14, 2024, S285853; People v. Saldana (2023)
97 Cal.App.5th 1270 [same], review granted Mar. 12, 2024,
S283547; Christianson, supra, 97 Cal.App.5th 300 [same], review
granted; see also People v. Espino (2024) 104 Cal.App.5th 188[section 1172.75 applies to prior prison term enhancements that
were imposed and stricken]; but see People v. Rhodius, supra,
97 Cal.App.5th 38 [section 1172.75 applies only where an
enhancement under section 667.5, subdivision (b), was imposed
and executed], review granted.)
Section 1172.75 requires the court to provide a full
resentencing hearing to any defendant currently serving time in
prison on a judgment that includes “[a]ny sentencing
enhancement that was imposed prior to January 1, 2020,
pursuant to subdivision (b) of Section 667.5,” except for
convictions for a sexually violent offense. (§ 1172.75, subd. (a),
italics added.) Standing alone, the word “impose” is a little
ambiguous. (See People v. Gonzalez, supra, 43 Cal.4th at p. 1125
[the “word ‘impose’ applies to enhancements that are ‘imposed
and then executed’ as well as those that are ‘imposed and then
7
stayed’”].) However, in the context of section 1172.75, construing
“imposed” to include “imposed and stayed” harmonizes
subdivision (a) with the rest of the statute and leads to the more
reasonable result.
Under section 1172.75, subdivision (b), the Department
must “identify those persons in their custody currently serving a
term for a judgment that includes an enhancement described in
subdivision (a).” “A judgment may include a sentence that has
been imposed but suspended or stayed.” (Christianson, supra,
97 Cal.App.5th at p. 311, review granted; see People v. Mani
(2022) 74 Cal.App.5th 343, 380.) “Thus, by its plain language, all
that is required for the [Department] to identify an inmate under
section 1172.75, subdivision (b) is for the enhancement to be
included in the abstract of judgment, regardless of whether it is
imposed or stayed. 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.”
(Christianson, at p. 312.)2
2 The People contend “the Christianson court was incorrect
to hold that a defendant is eligible for full resentencing under
section 1172.75 simply because a now-invalid section 667.5,
subdivision (b), enhancement appears on the abstract of
judgment.” The People assert section 1172.75, subdivision (b),
requires the Department to identify only defendants “in their
custody,” not released defendants, even though a released
defendant may have an enhancement on his or her abstract of
judgment. Fair enough. But the fact the Legislature did not
intend section 1172.75 to apply to a released defendant does not
mean the Legislature did not intend to grant relief to a currently
8
The People rely on People v. Gonzalez, supra, 43 Cal.4th
1118, where the Supreme Court interpreted the term “impose” in
section 12022.53, subdivision (f). That statute, which governs
firearm enhancements, states that “‘[o]nly one additional term of
imprisonment under this section shall be imposed per person for
each crime.’” (Gonzalez, at p. 1125.) Therefore, the Supreme
Court concluded, “the statute’s punishment and legislative intent
will be carried out only if [the word ‘impose’] is interpreted as
shorthand for ‘impose and execute.’” (Id. at p. 1127.) That
interpretation allowed the trial court to impose and execute the
firearm enhancement with the longest term of imprisonment and
to stay, rather than strike, additional firearm enhancements,
“making the prohibited enhancements readily available should
the section 12022.53 enhancement with the longest term be found
invalid on appeal.” (Id. at p. 1129.)
The People argue there is “no reason for this Court to adopt
a different characterization of the term ‘imposed’ in
section 1172.75.” But there is a reason: Section 1172.75 is part
of a different statutory scheme with a very different legislative
goal than section 12022.53. As the Supreme Court stated in
People v. Gonzalez, supra, 43 Cal.4th 1118, “section 12022.53 was
enacted to ensure that defendants who use a gun remain in
prison for the longest time possible.” (Id. at p. 1129.)
Section 1172.75, in contrast, “involves statutory amendments
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.’” (Christianson, supra, 97 Cal.App.5th at p. 314,
incarcerated defendant serving a prison term that includes a
stayed enhancement.
9
review granted; see Sen. Rules Com., Analysis of Sen. Bill
No. 136 (2019-2020 Reg. Sess.) as amended Sept. 3, 2019, p. 5.)
The People also argue interpreting “imposed” to exclude
stayed enhancements is necessary to harmonize section 1172.75,
subdivision (a), with section 1172.75, subdivision (d), which
states resentencing “shall result in a lesser sentence than the one
originally imposed.” The People contend that Mackey’s stayed
enhancements did not increase his sentence and that
“eliminating the repealed prior prison term enhancements would
do nothing to decrease the sentence originally imposed.” But an
enhancement, even if stayed, does increase a sentence. “When a
punishment is stayed, as opposed to stricken, the trial court
retains the ability to lift the stay and impose the term under
certain circumstance[s], such as if an alternately imposed term is
invalidated. [Citation.] Thus, a stayed sentence enhancement
remains as part of the judgment and continues to carry the
potential for an increased sentence in certain circumstances, and
removal of the stayed enhancement does provide some relief to
the defendant by eliminating that potential.” (Christianson,
supra, 97 Cal.App.5th at p. 312, review granted; see People v.
Mayberry, supra, 102 Cal.App.5th at p. 674 [“Imposed-but-stayed
prior prison term enhancements carry the possibility of
execution.”], review granted; People v. Saldana, supra,
97 Cal.App.5th at p. 1278 [“The presence of a stayed term or
enhancement is not without significance; it is part of the sentence
and remains available if its execution becomes necessary and
proper for any legally sanctioned reason.”], review granted.)
Even if the superior court at the resentencing hearing strikes the
stayed enhancements and declines to reduce any other part of
10
Mackey’s sentence, his new sentence will be a lesser sentence
than his original sentence.
The People argue it is “highly unlikely” the Legislature
intended “imposed” to include “imposed and stayed” because prior
prison term enhancements “generally cannot be stayed” and “the
Legislature would not have considered the statute to provide a
remedy for enhancements that were not supposed to exist.” (See
People v. Langston (2004) 33 Cal.4th 1237, 1241 [“Once the prior
prison term is found true within the meaning of section 667.5(b),
the trial court may not stay the one-year enhancement, which is
mandatory unless stricken.”].) But as the People acknowledge, at
the time the Legislature amended section 667.5, subdivision (b),
the court could stay rather than strike a prior prison term
enhancement in some circumstances. For example, under
California Rules of Court, rule 4.447 “a court may not strike or
dismiss an enhancement solely because imposition of the term is
prohibited by law or exceeds limitations on the imposition of
multiple enhancements.” (Rule 4.447(a).) Instead, the court
should “[s]tay execution of the part of the term that is prohibited
or exceeds the applicable limitation.” (Rule 4.447(a)(2); see
People v. Brewer (2014) 225 Cal.App.4th 98, 103-104 [rule 4.447
authorizes the trial court to stay enhancements under
section 667.5, subdivision (b), after imposing enhancements for
the same prison terms under section 667.5, subdivision (a)];
People v. Lopez (2004) 119 Cal.App.4th 355, 364 [rule 4.447 “is
intended ‘to avoid violating a statutory prohibition or exceeding a
statutory limitation, while preserving the possibility of
imposition of the stayed portion should a reversal on appeal
reduce the unstayed portion of the sentence’”].)
11
The People contend that in People v. Anderson (2018)
5 Cal.5th 372, decided after People v. Brewer, supra,225 Cal.App.4th 98 and People v. Lopez, supra, 119 Cal.App.4th
355, the Supreme Court “appears to have foreclosed the
possibility of properly employing a stay” where a one-year
enhancement under section 667.5, subdivision (b), and a five-year
enhancement under section 667, subdivision (a)(1), are based on
the same conviction. But in Anderson, a death penalty case, the
Supreme Court did not discuss whether the trial court could have
stayed execution of an enhancement under section 667.5,
subdivision (b). The Supreme Court’s opinion includes only a
brief discussion of the section 667.5, subdivision (b),
enhancement: “In addition to sentencing defendant to death, the
court imposed a prison sentence for the other counts and prior
convictions. The sentence included a consecutive one-year
enhancement for the prior prison term. (Pen. Code, § 667.5,
[former] subd. (b).) Defendant argues, and the Attorney General
concedes, that, because the prison term was served for two of the
convictions for which the court also enhanced the sentence, the
enhancement for the prior prison term must be stricken. We
agree.” (Anderson, at p. 426.)
The Supreme Court’s direction, without discussion, to the
trial court in Anderson to strike the section 667.5, subdivision (b),
enhancement does not establish the Legislature knew trial courts
could not stay execution of enhancements under section 667.5,
subdivision (b), and therefore did not intend section 1172.75 to
apply to stayed enhancements. (See People v. Mayberry, supra,
102 Cal.App.5th at p. 676 [“Laws in existence when
section 1172.75 was enacted allowed those sentence
enhancements to be stayed under certain circumstances.
12
Knowing this, if the Legislature intended for the language in
subdivision (a) of section 1172.75 to limit legal invalidity to
section 667.5, former subdivision (b) enhancements that were
imposed and executed it could have done so. It did not.”], review
granted.)3
Nor does the legislative history reflect that the Legislature
intended section 1172.75 to apply only to defendants whose
enhancements were executed. The People point to the preamble
to Senate Bill No. 483, which states the Legislature intended to
apply Senate Bill No. 136 retroactively to “all persons currently
serving a term of incarceration in jail or prison for these repealed
sentence enhancements.” (Stats. 2021, ch. 728, § 1.) But as
discussed, a defendant like Mackey is currently serving a prison
term that includes a stayed enhancement. The People do not
point to anything in the legislative history indicating that only an
inmate currently serving a one-year enhancement is eligible for
relief. In fact, section 1172.75 applies to inmates not currently
serving the one-year enhancement by differentiating between
“individuals who have served their base term and any other
3 Relying on People v. Anderson, supra, 5 Cal.5th 372, the
People argue in passing the stayed enhancements in this case
“were not lawfully imposed” in 2014 and 2016 because the trial
court should have stricken them. But even if the trial court erred
in staying execution of the enhancements, Mackey was entitled to
a full resentencing under section 1172.75 because, as discussed,
he is currently serving a sentence that includes enhancements
under section 667.5, subdivision (b). (See Christianson, supra,
97 Cal.App.5th at p. 317 [“Even if the sentencing court
improperly stayed one or more of the section 667.5,
subdivision (b) enhancements, . . . the proper remedy would be a
full resentencing.”], review granted.)
13
enhancement and are currently serving a sentence based on the
enhancement” and “all other individuals” and giving priority to
the former group but not excluding the latter group. (§ 1172.75,
subd. (c).)
The People also rely on legislative history stating Senate
Bill No. 483 would potentially result in “reduced state
incarceration costs.” (Sen. Com. on Appropriations, Analysis of
Sen. Bill No. 483 (2021-2022 Reg. Sess.) May 10, 2021.) The
People quote People v. Rhodius, supra, 97 Cal.App.5th 38, review
granted, where the court stated, “Senate Bill 483’s reference to
each additional year of imprisonment costing $112,600 per person
also contemplates the execution of the sentence. This cost to
taxpayers would be irrelevant for defendants whose sentence was
imposed and stayed.” (Id. at p. 48.) But as discussed, even a
stayed enhancement may be imposed in the future and increase a
sentence. Therefore, the Legislature’s statement section 1172.75
would reduce costs does not preclude extending relief under the
statute to inmates whose enhancements were imposed and
stayed.
14
DISPOSITION
The order denying Mackey’s request for resentencing is
reversed. The superior court is directed to vacate its order and
resentence Mackey in accordance with section 1172.75. The
superior court is also directed to prepare a new and corrected
abstract of judgment and send it to the Department.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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