Full Resentencing For Invalid Enhancement if Stayed?

The answer to the rhetorical question posed in the title to this article is yes, according to People v. Silverio Saldana, a recent Third Appellate District Court ruling.  Put another way, a stayed sentence enhancement does constitute an unauthorized sentence. 

 

The more important question also answered by Saldana’s court is whether such a stayed sentence still entitles defendant to full resentencing.  The Third District said yes.

To understand the ruling better, it is helpful to know facts of Silverio Saldana’s case.  

In 2013, a Yolo County Superior Court jury found Mr. Saldana guilty of possession of a controlled substance for sale (Health & Safety Code § 11378) and the judge sentenced Mr. Saldana to 25 years to life as a Three Strike Offender.  At that time, the trial court judge imposed and stayed four prior prison term enhancements found true under Penal Code § 667.5(b).  

It should be noted that staying imposition of the four one-year prison priors was erroneous then under People v. Langston (2004) 33 Cal. 4th 1237, 1241 (“[o]nce the prior prison term is found true within the meaning of Penal Code § 1172.75(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken.”).]

Nearly a decade later, the California Department of Corrections and Rehabilitation (CDCR) referred Mr. Saldana’s sentence to the trial court as having a judgment with one or more qualifying prior sentence enhancements for resentencing.  Mr. Saldana did not have a disqualifying conviction for a violent sex offense.

Defense counsel then moved to strike the four prison prior term enhancements under Penal Code § 1172.75 and requested full resentencing under 1172.75 and People v. Buycks (2018) 5 Cal. 5th  857, 890 (“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’”), which meant application of the Three Strikes Reform Act to further reduce the sentence, perhaps even to time served if the judge were to simply double the § 11378 sentence.  

The judge applied § 1172.75 to strike the previous stayed enhancements, but declined to conduct a full resentencing because the enhancements were stayed.  The trial court cited to Penal Code § 1172.75(d) in support of this decision.

Mr. Saldana then appealed to the California Court of Appeal for the Third Appellate District in Sacramento.  

The Third District first acknowledged that in People v. Renteria (2023) 96 Cal. App. 5th 1276, the Sixth Appellate District held that defendant had the right to full resentencing under the same circumstances as presented in this case.  However, in People v. Rhodius (2023) 97 Cal. App. 5th 38, the Fourth Appellate District held that defendant was not entitled to full resentencing because the now invalid sentence enhancements were stayed after imposition of the sentence and thus, they were not “imposed” as required under § 1172.75 for resentencing eligibility.  Then in People v. Ryan David Christiansen (Nov. 17, 2023) ____ Cal. App. 5th ___, the Fourth District said defendant was entitled to full resentencing under the same circumstances as presented in Saldana here.

The Third District then explained that it agreed with Renteria and Christiansen, explaining that Penal Code § 1172.75(c) expressly provides that if a judgment includes a qualifying prior prison term enhancement, the trial court shall recall the sentence and resentence the defendant.  At any such resentencing, the court shall “apply any other changes in law that reduce sentences or provide for judicial discretion as to eliminate disparity of sentences and to promote uniformity of sentencing.” Penal Code § 1172.75(d)(2).

The Third District also cited to People v. Monroe (2022) 85 Cal. App. 5th 393, at 402, which held “By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strikes the newly ‘invalid’ enhancements.”

The Third District therefore remanded the case for resentencing on all counts so that it may apply its discretion considering the changed circumstances in sentencing.