Filed 10/3/24 P. v. Walker 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

WALTER EARL WALKER,

Defendant and Appellant. B 334454

(Los Angeles County Super. Ct. No. TA033786 )

APPEAL from a n order of the Superior Court of
Los Angeles County, Allen Joseph Webster, Jr. , Judge. Reversed. Sydney Banach

, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman

, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________2 In 1996, a jury convicted Walter Earl Walker of murder and assault. When sentencing Walker, the trial court imposed and stayed two Penal Code 1 section 667.5, subdivision (b) prior prison term enhancements. The Legislature subsequently
deemed invalid enhancements “imposed” pursuant to section 667.5, subdivision (b) unless imposed for a sexually violent offense. Section 1172.75 creates a procedure for resentencing persons sentenced to the now invalid enhancements. This appeal is from the trial court’s order denying Walker a resentencing hearing because the section 667.5, subdivision (b) enhancements were imposed and stayed, as opposed to imposed and executed. On appeal, the parties dispute whether
section 1172.75 applies to enhancements that were imposed but stayed. Recognizing this issue is currently before our h igh c ourt, 2 we follow the weight of appellate authority holding a defendant whose sentence includes a section 667.5, subdivision (b) enhancement that has been imposed and stayed is entitled to a full resentencing hearing. Accordingly, we reverse the order denying Wa lker a resentencing hearing.

BACKGROUND 3
By information filed September 8, 1995, the People charged Walker with the murder of Miguel Galarza and an assault with a
firearm on E

. Macedo. The People alleged Walker personally

1 Undesignated statutory citations are to the Penal Code.

2 See Discussion

, post

.
3 Although o ur record does not include a transcript of the trial, the facts underlying Walker’s offenses are irrelevant to the legal issue before us.3

used a firearm. The People alleged t wo section 667.5,
subdivision (b) enhancements. The jury convicted Walker of murder and assault and found

true the personal use of a firearm as to both convictions

. The

court also found true the two 667.5, subdivision (b)
enhancements

. In 1996, the court sentenced Walker to a total term of
37 years 4 months to life. The court imposed and stayed a

one

- year term for each 667.5 , subdivision (b) enhancement

. In 2023, the Department of Corrections and Rehabilitation (CDCR) notified the Superior C ourt that Walker was possibly eligible for resentencing based on the section 667.5

, subdivision (b) enhancements

. The resentencing trial court found
Wa lker was not eligible for resentencing because the trial court had stayed sentence on the section 667.5 , subdivision (b)
enhancements

. Walker did not file a timely notice of appeal, but

we court granted him relief to file a belated notice of appeal.

DISCUSSION

A sentence enhancement is an “ ‘ “additional term of imprisonment added to the base term.” ’ [Citation.] ” ( People v.
Gonzalez (2008) 43 Cal.4th 1118, 1124.) Before January 1, 2020,
section 667.5, subdivision (b) required that trial courts impose a

one

- year sentence enhancement for each prior prison or county jail term the defendant served if the defendant had not remained free of custody for the preceding five years. (§ 667.5, former
subd. (b); People v. Jennings (2019) 42 Cal.App.5th 664, 681 ( Jennings ).) Effective January 1, 2020, Senate Bill No. 136 (2019

– 2020 Reg. Sess.) (Senate Bill No. 136) amended section 667.5,
subdivision (b), by limiting the enhancement to prior prison4

terms for sexually violent offenses. (§ 667.5, subd. (b); Jennings

, supra , 42 Cal.App.5th at p. 681.) “ By eliminating section 667.5,
subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 (2019

– 2020 Reg. Sess.) to reduce or mitigate the punishment for prior prison terms for
offenses othe r than sexually violent offenses. ” ( Jennings

, supra , at p. 682.) In 2021, the Legislature enacted Senate Bil l No. 483 (2021

– 2022 Reg. Sess.) (Senate Bill No. 483), which made Senate
Bill No. 136 ’ s changes to the law retroactive (Stats. 2021, ch. 728, § 1), and added former section 1171.1, now section 1172.75, to the
Penal Code. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.) Section 1172.75 provides in relevant part:

“ (a) Any 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

. . . is legally invalid.

“ (b) The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement
described in s ubdivision (a) and shall provide the name of each person, along with the person ’ s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement.

. . . [¶] . . . [¶]

“ (c) Upon receiving the information described in subdivision (b), the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current5

judgment includes an enhancement described in subdivision (a),
the court shall recall the sentence and resentence the
defendant.

. . . [¶] . . . [¶]

“ (d)(1) Resentencing 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, unless the court finds by clear and convincing evidence that imposing a lesser

senten ce would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. ” ( § 1172.75, italics added.) The parties dispute whether the term “imposed” in subdivision (a) includes enhancements that were imposed and stayed or instead, applies only to enhancements that are imposed and executed. Appellate courts have disagreed on this issue, which is pending b efore our Supreme Court. (See, e.g., People v. Espino (2024) 104 Cal.App.5th 188 ( Espino ) [ holding inter alia § 1172.75 applicable to sentence enhancements regardless of whether the original trial court stayed the enhancement] ; 4 People v. Mayberry (2024) 102 Cal.App.5th 665, 672 [same]

, review granted Aug

. 14, 2024
, S285853 ; People v. Saldana (2023)
97 Cal.App.5th 1270, 1276 [same], review granted Mar. 12, 2024, S283547; People v. Christianson (2023) 97 Cal.App.5th 300, 309 ( Christianson ) [same], review granted Feb. 21, 2024, S283189;

4 The majority in Espino also held that section 1172.75 applie s to a section 667.5, subdivision (b) enhancement that the original trial court had stricken. ( Espino

, supra , 104 Cal.App.5th at p. 194 , petn. f

or review pending, petn. f iled Sept. 19, 2024, S 286987 [ 324 Cal.Rptr

. 3d 377, 382

– 383 ] .) We express no opinion on whether that holding is correct.6

People v. Rhodius (2023) 97 Cal.App.5th 38 [holding § 1172.75 applies only to executed sentence enhancements], review granted Feb. 21, 2024, S283169.)
W e agree with those appellate courts interpreting
section 1172.75 to include sentences for prison prior enhancements that have been imposed and stayed, particularly
Christianson

, supra , 97 Cal.App.5 th 300 , review granted

. Christianson explained that under section 1172.75,
subdivision (b), the CDCR is required to identify all inmates for whom the section 667.5, subdivision (b) enhancements were included in the abstract of judgment regardless of whether the enhancements were stayed. ( Christianson

, supra , at p. 312.)

“ Had the Legislature intended for the language in subdivision (b) to limit the identification to those inmates that would necessarily be required to serve an additional term based on the enhancement, it certainly could have done so. ” ( Ibid .) “ It does not follow logic or reason to read these two subdivisions together in a manner that would require the CDCR to identify a larger
class of inmates

— all those serving time on a judgment that
include a now invalid enhancement

— only for the trial courts t o then look at the same abstracts of judgment available to th e CDCR to determine whether the previous court imposed additional time for, or stayed, the relevant enhancements. ” ( Ibid .)
Christianson further explained that the Legislature
intended to “ provide broad relief to all defendants impacted by the now invalid section 667.5, subdivision (b) enhancements. ” ( Christianson

, supra , 97 Cal.App.5th at p. 314 , review granted.)
Because “ the Legislature chose to mandate a full resentencing for those individuals impacted by a now invalid section 667.5,7

subdivision (b) enhancement ,” Christianson discerned “ no reason to differentiate between defendants serving an additional term based specifically on a now invalid enhancements and those for whom the enhancement was imposed but stayed. In both instances, the presence of the enhancement was one component considered by the sentencing court in pronouncing the overall

sentence. ” ( Christianson

, supra , at p. 315.) Respondent argues Christianson was wrongly decided
because it relied on People v. Jones (1993) 5 Cal.4th 1142 and People v. Brewer (2014) 225 Cal.App.4th 98 “to conclude the Legislature was aware of a trial court’s authority to stay
section 667.5(b) enhancements and, by not providing a ‘carveout’ for such stayed enhancements, intended for section 1172.75 to apply to both executed and stayed enhancements. ” According to respondent, Jones and Brewer considered “other provisions of law” and did not consider the “Legislature’s use of ‘imposed’ in section 667.5(b).” We agree with respondent insofar as respondent argues
neither Jones nor Brewer considered the meaning of the term “imposed” in section 1172.75, subdivision (a), the resentencing statute at issue before us. We, however, do not agree that
Christianson ’s reliance on those cases undermines Christianson ’s holding that section 1172.75 includes section 667.5,
subdivision (b) enhancements that were imposed and stayed. First, Christianson relied on Brewer to reject respondent’s argument that a stayed enhancement never results in additional punishment. ( Christianson

, supra , 97 Cal.App.5th at p. 312

, review granted .) Citing Brewer

, Christianson explained that a trial court “retains the ability to lift the stay and impose the term under certain circumstance, such as if an alternately imposed8

term is invalidated.” ( Ibid .) Respondent does not dispute that a trial court retains the ability to impose a stayed term under
certain circumstances. Second, Christianson referred to Brewer and Jones in discussing whether the trial court in that case erred in administratively striking the section 667.5, subdivision (b) enhancement rather than resentencing the defendant. ( Christianson

, supra , 97 Cal.App.5th at pp. 315

– 316 , review granted .) The trial court in Christianson reasoned it should strike the enhancement because “the general rule that ‘once the prison prior is found true, it must be imposed or stricken, not stayed’

. . . . ” ( Id. at p. 315.) In other words, staying the
enhancement was unauthorized. In response, the appellate court observed there are statutory exceptions to the general rule. ( Ibid .) Christianson cited Jones and Brewer as “authority suggesting that section 667 allows for a stay in cases in which
there is both a sect ion 667 serious felony prior enhancement and a section 667.5, subdivision (b) enhancement based on the same underlying conviction.” ( Christianson

, supra , at pp. 315

– 316.)
Christianson then held the trial court erred in administratively striking the section 667.5, subdivision (b) priors rather than resentencing the defendant. ( Christianson

, at p. 316.) Again,

t hese references to Brewer and Jones do not undermine our
reliance on Christianson where the trial court here did not strike the section 667.5, subdivision (b) enhancements. Respondent also contends our high court has interpreted the term “imposed” in People v. Gonzalez (2008) 43 Cal.4th 1125

– 1130 to mean “imposed and executed.” The Gonzalez court, however, interpreted the term “imposed” as it appears in a completely different statute, there section 12022.53,9

subdivision (f). Gonzalez recognized that “imposed” could encompass an enhancement that was imposed and executed as
well as an enhancement that was imposed and then stayed , but reasoned, “ ‘ as a practical matter, the word “impose” is often employed as shorthand to refer to the first situation, while the word “stay” often refers to the latter.’ [Citation.]” ( Gonzalez

, supra , at p. 1125.) Construing the term in the context of th e statutory scheme before it

, Gonzalez held that “ impose ” in
section 12022.53, subdivision (f) mean s imposed and executed and not imposed and stayed. ( Gonzalez

, at p. 1126.)
A s Christianson recognized

, Gonzalez was interpreting a statute whose purpose was diametrically opposed to section 1172.75’s purpose to reduce sentences. As Gonzalez observed regarding section 12022.53, subdivision (f)

, “the Legislature ’ s stated intent was to ensure that “ ‘ “ substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to
deter violent crime.” [Citation.]’ [Citation.]” ( Christianson

, supra , 97 Cal.App.5th at p. 313
, review granted, i talics added .) In contrast, Senate Bill Nos. 13 6 and 483 were “expressly aimed

at reducing sentences by retroactively eliminating a sentencing enhancement described as exacerbating ‘existing racial and socio

economic disparities in our criminal justice system.’ (Sen. Rules Com., Analysis of Sen. Bill No. 136 (2019

– 2020 Reg. Sess.) as amended Sept. 3, 2019, p. 5; see also Stats. 2021, ch. 728, § 1 [‘in order to ensure equal justice and address systemic racial bias in sentencing, it is the intent of the L egislature to retroactively apply .

. . Senate Bill [No.] 136

. . . to all persons currently serving a term of incarceration in jail or prison for these repealed10

sentence enhancements’].)” ( C hristianson

, at p. 314.) Interpreting “imposed” broadly advances this goal

. (See ibid. )

DISPOSITION
The order finding Walker ineligible for resentencing is reversed. The case is remanded for a full resentencing hearing
pursuant to Penal Code section 1172.75

, as to the section 667, subdivision (b) enhancements that were imposed but stayed.
NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

WEINGAR T

, J.

KLINE , J. *

* Retired Presiding Justice of the Court of Appeal, First Appellate District

, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.