SB 483 & Stayed Sentence Enhancements (PC 667.5(b))?

If one was sentenced to state prison and the judge stayed one or more prior prison term enhancements otherwise applicable under Penal Code § 667.5(b), does this mean that he is ineligible for resentencing on the 667.5(b) enhancements?  After all, resentencing on such stayed enhancements, to strike them, will not shorten the sentence.

This question was posed to the California Court of Appeal for the Fifth Appellate District in the case of People v. Darryn Mayberry.  

In July 2018, Mr. Mayberry was charged in Fresno County Superior Court with second degree robbery (Penal Code § 211).  The complain also alleged that Mr. Mayberry previously suffered a juvenile adjudication and a serious felony conviction, both of which qualified as strike convictions under the Three Strikes Law (Penal Code §§ 667(b) – (i), 1170.12(a) – (d)), and served two separate prison terms (Penal Code § 667.5(b)).  The felonies underlying the prior prison term enhancement allegations did not constitute sexually violent offenses under Welfare & Institutions Code § 6600(b).

On July 23, 2018, Mr. Mayberry pled nolo contendere to the robbery charge and admitted both strike priors and both prior prison enhancements.

In 2019, the Legislature enacted Senate Bill (SB) No. 136, which became effective January 1, 2020.  The new law amended § 667.5(b) to revoke it unless the prior prison term was for a sexually violent offense as defined under Welfare & Institutions Code § 6600(b).

In 2021, the Legislature enacted Senate Bill No. 483 to retroactively apply SB 136 to all people currently serving a term in jail or prison for the repealed enhancement.  SB 483 added former section 1171.1 to provide this application.  In June, 2022, § 1171.1 was renumbered as 1172.75.

The CDCR then identified Mr. Mayberry as an inmate currently serving a term that included a prior prison term enhancement and claimed he was eligible for resentencing under § 1172.75.

In March 2023, Judge Houry A. Sanderson conducted a resentencing hearing and denied resentencing for Mr. Mayberry, explaining resentencing “takes nothing away, it is still the same number.  So, it’s not resulting in anything less because it’s not there.”  

Mr. Mayberry then appealed the ruling to the California Court of Appeal for the Fifth Circuit (in Fresno).  Mr. Mayberry argued that the trial court should have recalled the sentence and then struck his prior prison term enhancements, and resentenced him.  The Attorney general opposed the appeal, arguing that § 1172.75 applies only when the prior prison term enhancements are imposed and executed, but not when they are imposed and stayed.

The Fifth Circuit began its analysis by first noting for the record that the original sentence was improper because, in 2018, the judge lacked authority or discretion to stay the one-year prior prison term enhancements unless then were stricken.  People v. Langston (2004) 33 Cal.4th 1237, 1241.  In other words, the prior prison term enhancements were improperly stayed.  

The Fifth Circuit then examined § 1172.75 and noted that in subdivision (a), the Legislature stated, “[a]ny sentence enhancement imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for an enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.”  

Section 1175.75(d)(1) then states, in relevant part “[r]esentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement . . .” 

The Fifth Circuit then reminded us that imposed term enhancements that are stayed may be executed, so striking them as invalid will result in a lesser sentence because it eliminates their impact from the originally imposed sentence.  

Accordingly, Mr. Mayberry was legally entitled to have his original sentence recalled and to be resentenced in accordance with Section 1172.75.  The Fifth Circuit then reversed the trial court’s order and the matter was remanded to the trial court with instructions to recall Mr. Mayberry’s sentence and resentence him in compliance with the statute.