Filed 2/22/24 P. v. Garcia CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JESUS PEDRO GARCIA,

 Defendant and Appellant.

2d Crim. No.B325385

(Super. Ct. No. 2016017314)

(Ventura County)

Jesus Pedro Garcia appeals an order denying his motion to 

strike a prior prison term enhancement (former Pen. Code, 1

§ 667.5, subd. (b)), for his 2016 conviction for carjacking (§ 215, 

subd. (a)), under the resentencing provisions of section 1172.75.

At the time Garcia filed his motion, he was serving a seven-year 

consecutive sentence for a 2019 conviction for assault with force 

likely to produce great bodily injury by a prisoner. (§ 4501, subd. 

(b).) We conclude, among other things, that: 1) the trial court had 

jurisdiction to decide the merits of the resentencing issue, and 2) 

1 All statutory references are to the Penal Code.
2

the court did not err because Garcia’s 2019 sentence did not 

include a prior prison term enhancement. We affirm.

FACTS

In 2016, Garcia pled guilty to carjacking (§ 215) and he 

admitted to the imposition of a prior prison term enhancement. 

(Former § 667.5, subd. (b).) The trial court sentenced him to an 

aggregate prison term of four years – a three-year sentence for 

the carjacking count and a consecutive one-year sentence for the 

former section 667.5, subdivision (b), prior prison term 

enhancement. 

In 2019, Garcia committed an offense while in prison. He 

pled guilty to assault with force likely to produce great bodily 

injury by a prisoner. (§ 4501, subd. (b).) He was sentenced to a 

seven-year term to be served consecutively to the term of his 2016 

conviction. 

“Effective January 1, 2020, Senate Bill No. 136 (2019-2020 

Reg. Sess.) . . . amended section 667.5 by limiting the prior prison 

term enhancement to only prior terms for sexually violent 

offenses.” (People v. Burgess (2022) 86 Cal.App.5th 375, 380.) 

“Enhancements based on prior prison terms served for other 

offenses became legally invalid.” (Ibid.) “The amendment was to 

be applied retroactively to all cases not yet final on January 1, 

2020.” (Ibid.) Thereafter, the Legislature enacted section 

1172.75 (former section 1171.1, added by Stats. 2021, ch. 728, § 3;

renumbered section 1172.75 by Stats. 2022, ch. 58, § 12), which 

provides a procedure for the Secretary of the California 

Department of Corrections and Rehabilitation (CDCR) to create a 

list of prisoners who are “currently serving a term for a judgment 

that includes” a prior prison term enhancement to allow the court 
3

to provide retroactive sentencing relief. (§ 1172.75, subd. (b);

Burgess, at p. 380.) 

On June 16, 2022, pursuant to section 1172.75, CDCR 

circulated a list of prisoners who were serving terms that 

included prior prison term enhancements. Garcia’s name was on 

that list. 

Pursuant to a procedure devised by the Ventura County 

Superior Court, the district attorney and the public defender, the 

trial court scheduled hearings after the CDCR placed Garcia’s 

name on the list to comply with section 1172.75. 

Pursuant to this procedure, the district attorney filed a 

brief in opposition to resentencing claiming the current sentence 

Garcia was serving was for his 2019 conviction which did not 

contain a prior prison term enhancement. He argued Garcia was 

ineligible for resentencing under section 1172.75 because it 

applies to prisoners “currently serving a term for a judgment that 

includes” an invalid enhancement. (§ 1172.75, subd. (b).) 

Garcia’s counsel filed a responsive brief. He claimed Garcia was 

eligible under the statute. His brief included a partial label that 

it was a “petition for resentencing.” 

On November 3, 2022, the trial court held a hearing to 

determine whether to strike the prior prison term enhancement 

for Garcia’s 2016 conviction. At that time Garcia was serving a 

sentence for his 2019 conviction. The court ruled it would not 

strike the enhancement because Garcia was serving a sentence 

for his 2019 in-prison offense which did not include a prior prison 

term enhancement. 
4

DISCUSSION

The Trial Court’s Jurisdiction

The Attorney General contends the trial court lacked 

jurisdiction because Garcia filed a prohibited freestanding

“petition for resentencing,” and such petitions are not authorized 

under section 1172.75.2 He claims this appeal must therefore be 

dismissed. We disagree.

Section 1172.75 invalidates “prior prison term 

enhancements” except for sexually violent enhancements that are 

not applicable here. (People v. Escobedo (2023) 95 Cal.App.5th

440, 447.) “But section 1172.75 does not authorize appellants to 

file a petition or a motion to strike the unauthorized 

enhancement[].” (Ibid.) Instead, the Legislature provided an 

exclusive procedure whereby CDCR initiates the resentencing 

procedure by preparing a list of potentially eligible prisoners who 

have prior prison term enhancements that is sent to the court. 

(Id. at pp. 447-448.) “ ‘[A] “freestanding motion [or petition] 

challenging an incarcerated defendant’s sentence is not a proper 

procedural mechanism to seek relief.” ’ ” (Id. at p. 448.) 

The Attorney General’s claim that Garcia filed a prohibited

freestanding petition for resentencing is not correct. Here the 

CDCR initiated the statutory procedure by circulating the

required list with Garcia’s name as a prisoner who had a prior 

prison term enhancement. Thereafter, the trial court scheduled a 

hearing to determine whether to strike the enhancement 

pursuant to a procedure authorized by the district attorney, the 

public defender, and approved by the superior court. This 

approved procedure was established to comply with section 

2 We grant the People’s motion to augment the record and 

Garcia’s motion to augment the record.
5

1172.75. The Attorney General’s claim that Garcia initiated a 

prohibited freestanding petition is refuted by Ventura County 

Deputy District Attorney Michelle Contois who, in an agreed 

statement with the public defender, stipulates, “The Garcia 

matter was calendared in accord with this agreed upon procedure 

and was not an unauthorized freestanding petition.” (Italics 

added.) 

Moreover, the Attorney General’s claim that Garcia filed an 

unauthorized petition is based on part of the label of the 

document Garcia’s counsel filed. On November 1, 2022, Garcia’s 

counsel filed a “petition for resentencing and reply to 

prosecution’s opposition.” (Italics added.) We look to the 

substance of that document “rather than its label.” (Malott v. 

Summerland Sanitary Dist. (2020) 55 Cal.App.5th 1102, 1110.) 

This document was only a brief in response to the People’s 

October 5, 2022, “opposition” to resentencing. The statute does 

not preclude the parties from filing briefs to guide the court on 

whether to strike the enhancement. (§ 1172.75.)

At the November 3, 2022, hearing, the trial court ruled this 

was a matter properly scheduled “for resentencing.” The district 

attorney asked the court to exercise its authority under section 

1172.75, subdivision (c), and rule that Garcia’s prior prison term 

enhancement did not fall within the statutory resentencing 

provision. The People, now represented on appeal by the 

Attorney General, may not change position and now contend the 

court lacked the authority to act. (People v. Castillo (2010) 49

Cal.4th 145, 155.) The court’s authority to rule on whether to 

strike the enhancement is authorized by statute. (§ 1172.75, 

subd. (c).) The claim that the court lacked jurisdiction is without 

merit.
6

Did the Trial Court Err by Not Striking the Enhancement?

Garcia contends the trial court erred by not striking the 

prior prison term enhancement. He claims: 1) he was serving one 

aggregate sentence composed of his original 2016 sentence and 

the consecutive sentence for the 2019 conviction for his offense he 

committed in prison; and 2) because he had only one aggregate 

sentence, it included the prior prison term enhancement imposed 

for the 2016 conviction, and the statute required the court to 

strike it. 

But we rejected this claim in Escobedo. (People v. 

Escobedo, supra, 95 Cal.App.5th at p. 452.) We held “ ‘ “the term 

for an in-prison offense” ’ ” begins “ ‘to run at the end of the 

prison term imposed for the original out-of-prison offenses.’ ” 

(Ibid.) Consequently, Garcia had two separate sentences – one 

for his 2016 conviction and one for his in-prison 2019 conviction. 

“ ‘ “[T]he term for an in-prison offense does not become part of the 

aggregate prison term imposed for those offenses which were 

committed ‘on the outside.’ ” ’ ” (Ibid.) “ ‘ “The latter term starts 

to run at the end of the prison term imposed for the defendant’s 

original ‘outside’ offense.” ’ ” (Ibid.) Thus, Garcia’s “ ‘consecutive 

sentence for his . . . in-prison offense is not merged or aggregated 

with his original term for the . . . out-of-prison offense. Instead,

the two terms are treated as separate terms, with the term for 

the in-prison offense beginning only when [the defendant] 

completes the term for his out-of-prison offense.’ ” (Ibid.) 

At the time of the resentencing hearing, Garcia had 

completed his sentence for his 2016 offense. He was serving a 

sentence for his 2019 in-prison offense, and because his sentence

did not contain a prior prison term enhancement, the trial court 
7

did not err by not striking the enhancement imposed for his 2016 

offense. (People v. Escobedo, supra, 95 Cal.App.5th at p. 452.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

BALTODANO, J.
8

Michele M. Castillo, Judge

Superior Court County of Ventura

______________________________

Claudia Y. Bautista, Public Defender, William M. Quest, 

Deputy Public Defender, for Plaintiff and Respondent.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Kenneth C. Byrne, Allison H. Chung, Deputy 

Attorneys General, for Plaintiff and Respondent.