Resentencing Allowed Although Illegal Sentence Stayed

In June 2016, Ryan David Christianson entered into plea bargain agreements in two separate criminal cases arising in San Diego County Superior Court.

In the first case, he pled guilty to one count of burglary (Penal Code § 459), receiving stolen property (Penal Code § 496(a)) and resisting an officer (Penal Code § 148(a)(1)). In addition, he admitted to one prior conviction that qualified as a strike prior (Penal Code § 667(b)), that the same conviction qualified as a serious prior felony (Penal Code § 667(a)(1)) and that he had served five prior terms in prison (Penal Code § 667.5(b)).

In the second case, he pled guilty to one count of possession of a controlled substance, methamphetamine, for sale (Health & Safety Code § 11378).

In the written plea agreement for the first case, he agreed to a sentence of nine years – low term on the burglary (two years), times two for the prior strike, plus five years for the prior serious felony and all other counts would be dismissed. In the second case, he received a sentence of two years, to run concurrent with the first case.

The judge confirmed the terms with Mr. Christianson, who agreed. The judge then indicated that for each of the prison priors, she would impose one year, stayed. The abstract of judgment reflected this with an “S” for stay by each of the five one-year prison prior enhancements.

On June 27, 2022, the California Department of Corrections and Rehabilitation (CDCR) identified Mr. Christianson as an inmate “serving a term for a judgment that includes an enhancement for a prior conviction that is now legally invalid,” and thus potentially eligible for resentencing under Penal Code § 1172.75.

In response, the San Diego County Superior Court trial court judge, Lisa R. Rodriguez, issued a tentative ruling concluding that Mr. Christianson was not entitled to relief under § 1172.75 because he was not currently serving a sentence enhanced by an eligible prison prior. The judge appointed a public defender to represent Mr. Christianson and permitted briefing on the issue.

Christianson argued, through his public defender, that the plain language of Penal Code § 1172.75 requires resentencing for every inmate serving a term for which the abstract of judgment includes a now invalid enhancement without regard to whether the additional term was imposed and executed or imposed and stayed.

The unstated defense argument, we believe, was once the judge agreed to resentencing, Senate Bill 1393 would apply, allowing the judge discretion to strike the five-year prior serious felony conviction enhancement. If the five year enhancement were stricken, then Mr. Christianson would be eligible for release on time served.

The People argued, to the contrary, that Penal Code § 1172.75 only applies to sentences in which punishment for one or more prison priors is imposed and executed, such that defendant would be required to serve additional time in custody as a result of the now invalid enhancement. They argued, further, that the Legislature could not have intended for section 1172.75 to apply to stayed prison prior enhancements because it never authorized trial courts to stay such enhancements in the first instance. Thus, the stayed enhancements were unauthorized and subject to administrative correction, but Mr. Christianson was not entitled to a full resentencing under § 1172.5.

After briefing and argument, the trial court denied resentencing and rejected Mr. Christianson’s interpretation of § 1172.5 and, instead, concluded that the statute only applies to those defendants “currently serving an additional year in prison because of the imposition of the punishment for the enhancement.” However, it ordered the stayed prison priors “administratively” stricken and a new abstract of judgment and denied Mr. Christianson’s request for full resentencing.

Mr. Christianson then appealed to the Fourth Appellate District, agreeing instead with Mr. Christianson that full resentencing was required under Penal Code § 1172.75(c) because section (a) states it applies to any sentence enhancement imposed prior to January 1, 2020 under Penal Code § 667.5(b) for an offense that was not a sexually violent offense. This means it applies to enhancements imposed, regardless of whether the sentence is executed or stayed. The matter was then remanded to the trial court with an order to grant Mr. Christianson’s request for resentencing.

We doubt the court will then strike the five-year prior serious felony conviction enhancement.

Nonetheless, we present this summary to the reader because there have been other appellate districts that have reached a different result on arguably the same factual scenario involved a stayed 667.5(b) enhancement.