Filed 9/ 3 / 24 P. v. Lope z CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL LOPEZ et al.

,

Defendant s and Appellant s

. B 3 2 9802

(Los Angeles County Super. Ct. No. BA459259 )

APPEAL from an order of the Superior Court of
Los Angeles County, Shelly B. Torreal ba

, Judge. Reversed with
directions.
Lenore De Vita , under appointment by the Court of Appeal,
for Defendant and Appellant Daniel Lopez. Wayne C. T obin

, under appointment by the Court
of Appeal, for Defendant and Appellant Jesus Arellano

.2 Rob Bonta

, Attorney General

, Lance E. Winter s , Chief Assistant Attorney General

, Susan Sullivan Pithey

, Assistant Attorney General

, Scott A. Taryle and David E. Madeo , Deputy Attorney s General for Plaintiff and Respondent.

___________________________

Daniel Lopez and Jesus Arellano were convicted by plea
of certain crimes in 2019. Their prison sentences included a

one

- year enhancement for prior prison terms under Penal Code section 667.5, subdivis i on (b). 1 The prior prison terms were not
for convictions of a sexually violent offense. The Legislature
thereafter enacted section 1172.75, which declare s that such enhancements are “legally invalid” and provides a recall and resentencing procedure for incarcerated persons whose sentences
include the invalid enhancements

. Lopez and Arellano petitioned the superior court to recall their sentences and to be resentenced under this statute. The court denied the petitions , and t he defendants appealed. The Attorney General concedes that the defendants ’ prior prison enhancements are invalid, but argues that this court
should strike the one

- year enhancements from the sentences and otherwise affirm the judgment. We disagree. Section 1172.75
mandates the recall of the defendants’ sentences and a full resentencing hearing

, subject to the guidelines and requirements
of the statute.

1 Unspecified statutory references are to the Penal Code.3 FACTUAL AND PROCEDURAL SUMMARY

In September 2019, an information charged Lopez and
Arellano with one count of willful, deliberate, and premediated attempted murder (§§ 187, subd. (a), 664 )

, one count of shooting

at an occupied vehicle (§ 246) , and one count of assault with

a semiautomatic firearm. (§ 245, subd. (b).) The information further alleged certain gang, firearm, and prison prior
enhancements

, and that each defendant had previously served

at least one prison term for purposes of imposing a one

- year enhancement under section 667.5, subdivision (b). Lopez’s alleged prior conviction is for possession of a controlled
substance . (Health & Saf. Code, § 11351.) Arellano’s alleged prior prison terms are for convictions of being a felon in possession of a firearm . (§ 29800.) Lopez and Arellano entered into plea agreements with
the d istrict a ttorney. Lopez pleaded no contest to assault with

a deadly weapon (§ 245, subd. (b) ), and admitted allegations that
the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that he served a prior prison term (§ 667.5, subd. (b)). Arellano pleaded no contest to attempted murder and admitted allegations that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b))
and that he had served a prior prison term (§ 667.5, subd. (b)). The court accepted the plea s and found the defendants guilty.
On May 20, 2019, th e court sentenced Lopez to a total

term of 12 years in prison , comprised of six years for the conviction of assault with a deadly weapon , five years for
the gang enhancement, and one year for the prior prison
enhancement. On the same date, t he court sentenced Arellano

to a total term of 16 years in prison, comprised of five years4

for the attempted murder conviction, ten years for the gang enhancement, and one year for the prior prison enhancement. Pursuant to the plea agreements, the court dismissed the remaining counts.
In 2022, Lopez and Arellano filed motions to be resentenced pursuant to section 1172.75. They argued that the recent
enactment of Senate Bill No. 483 ( 2021

- 2022 Reg. Sess. ) rendered
the one

- year sentence enhancement s for the ir prison prior s legally invalid and required the court to resentence them accordingly. The prosecution opposed the motions on the ground
that reducing their sentences by one year would endanger public safety. After hearing arguments , the court denied the motions

. The court explained that the defendants continue “ to present a danger to public safety and a lesser sentence would endanger public safety.” Appellants each filed a timely notice of appeal.

DISCUSSION

In 2019, the Legislature amended section 667.5, subdivision (b) , effective January 1, 2020, to make the one

- year prior prison sentence enhancement that would otherwise be imposed under that statute applicable only if the prior prison
term is for a “ sexually viol ent offense.” ( Sen. Bill No. 136 ( 2019

- 2020 Reg. Sess. ) § 1 .) In 2021, the Legislature enacted the predecessor to
section 1172.75 (Sen. Bill. No. 483 ( 2021

- 2022 Reg. Sess. ) § 3 ), which provides that “[a] ny 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 as defined in5

subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid. ” (§ 1172.75, subd. ( a ).) The statute requires the Department of Corrections and Rehabilitation (CDCR) to identify each person serving a term of imprisonment
that includes the invalid enhancement and inform the sentencing

court no later than July 1, 2022

. (§ 1172.75, subd. (b).) If the sentencing court verif ies that the defendant’s judgment includes
the invalid enhancement , it “shall recall the sentence and

resentenc e the defendant. ” (§ 1172.75, subd. (c).) 2 The statute applies to sentences imposed pursuant to a plea agreement. ( People v. Hernandez (2024) 103 Cal.App.5th 981

, pe t n. for review pending, petn. filed Aug. 22, 202 4 , S28 6527 ; People v. Carter (2023) 97 Cal.App.5th 960, 972 .) Here, there is no dispute that Lopez and Arellano were
sentenced before January 1, 2020, their sentences included
the one

- year enhancement for a prior prison conviction under
section 667.5, and the prior prison convictions were not for a sexually violent offense. We therefore agree with the defendants and the Attorney General that t he enhancements are “legally
invalid

. ” (§ 1172.75, subd. (a)

. ) The trial court wa s therefore required to “ recall the sentence [s] and resentence the

2 The recall and resentencing process under section 1172.75 must be initiated by the CDCR

, not the defendant. ( People v. Burgess ( 2022 ) 86 Cal.App.5th 375, 383

– 384 ; People v. Newell (2023) 93 Cal.App.5th 265, 268 .) Here, counsel for Lopez stated in a declaration that the CDCR identified Lopez as a person entitled to relief under the statute and so informed the court. O ur record does not include a similar statement or other evidence with respect to A rellano

. Nevertheless, there is no dispute that the matter was properly before the trial court

.6

defendant[s]” as provided in section 1172.75. (§ 1172.75,
subd. (c) .)
The Attorney General nonetheless contends that a further hearing is not required because we can simply direct
the court to strike the invalid enhancement s and reduce the defendants’ sentences by one year

. We disagree. When it applies, s ection 1172.75 requires the court to “recall the sentence
and resentence the defendant.” (§ 1172.75, subd. (c).) Generally,

“ w hen a sentence is subject to recall, ‘ the resentencing court
has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall. ’ ” ( People v. Coddington (2023) 96 Cal.App.5th 562, 568 , quoting People v. Buycks (2018) 5 Cal.5th 857, 893.) This “general ‘full sentencing rule ’ ” applies to recalls under section 1172.75
, subject to the statute’s resentencing guidelines and requirements

. ( Coddington

, supra , at p. 568 ; see People v. Monroe (2022) 85 Cal.App.5th 393, 402 [by “its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’
enhancements ” ] ; accord, People v. Green ( Aug. 21, 2024, D082232 )

_ __ Cal.App.5th ___ [2024 WL 3883517 ]; People v. Garcia (2024) 101 Cal.App.5th 848, 855 ; People v. Montgomery (2024) 100 Cal.App.5th 768, 773

, review granted May 29, 202 4 , S2 84662 ; Carter

, supra , 97 Cal.App.5 th at p. 968

. ) The Attorney General does not cite any contrary authority

. In particular, the court , in resentencing the defendants, shall not impose “a longer sentence than the one originally imposed,” and shall impose a lesser sentence “ unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. ” (§ 1172.75, subd. (d)(1).) The court shall also apply the current sentencing rules and7

“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.” (§ 1172.75, subd. (d)( 2 ).)
The court may also “ 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 ).) Lastly, the statute limits the court’s ability to impose a sentence “exceeding the middle term .” (§ 1172.75,
subd. (d)( 4 ).) These are matters the trial court must consider
in this first instance

. Here, the court , having determined that
the defendants were not eligible to have their sentences recalled,

never did so. It must do so at a resentencing hearing.8 DISPOSITION

The order dated April 11, 2023, denying the defendants ’ requests for recall of their sentence s and to be resentenc ed
is reversed. The court shall enter a new order recalling the
defendants’ sentences and resentenc e defendants as provided
in section 1172.75.
NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J. We concur:

WEINGART , J.

KELLEY , J. *

* Judge of the San Luis Obispo Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.