Filed 8/6/24 P. v. Banuelos CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

EUSEBIO BANUELOS,

Defendant and Appellant.

 B332327

 (Los Angeles County

 Super. Ct. No. SA017369)

APPEAL from an order of the Superior Court of Los 

Angeles County, Lauren Weis Birnstein, Judge. Reversed and 

remanded.

Steven A. Torres, 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 Analee J. Brodie, 

Deputy Attorneys General, for Plaintiff and Respondent.

________________________
2

Defendant Eusebio Banuelos appeals the trial court’s 

denial of resentencing under Penal Code1 section 1172.75. As 

applicable here, section 1172.75 directed the trial court to strike 

any sentence enhancement “imposed prior to January 1, 2020, 

pursuant to subdivision (b) of [s]ection 667.5” (id., subd. (a)) and 

resentence Banuelos. Interpreting the term “imposed” to mean 

imposed and executed, the trial court declined to resentence

Banuelos because the section 667.5, subdivision (b) 

enhancements in his case were imposed and stayed. Banuelos

argues this was error.

The Courts of Appeal are currently divided on this issue 

and the Supreme Court has granted review. (See, e.g., People v. 

Mayberry (2024) 102 Cal.App.5th 665, 672 [holding § 1172.75 

applicable to stayed sentence enhancements]; 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 [same], review granted Feb. 21, 2024, S283189; People v. 

Rhodius (2023) 97 Cal.App.5th 38 [holding § 1172.75 applies only 

to executed sentence enhancements], review granted Feb. 21, 

2024, S283169.) We join the majority of courts and find that 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. We thus reverse and remand.

BACKGROUND

A jury convicted Banuelos of driving a car without the 

owner’s consent (Veh. Code, § 10851, subd. (a); count 1), 

1 Further statutory references are to the Penal Code unless 

otherwise specified.
3

possession of stolen property (§ 496; count 2),

2 and found true the 

allegations that Banuelos had served prior prison terms within 

the meaning of section 667.5, subdivision (b). (See People v. 

Banuelos (Nov. 15, 1996, B087673) [nonpub. opn.].) On 

September 14, 1994, the court sentenced Banuelos to 25 years to 

life as to each count pursuant to the Three Strikes law but stayed 

time on the latter count pursuant to section 654. However, the 

trial court did not dispose of the enhancements for prior prison 

terms during sentencing, and following a direct appeal, we

remanded the matter to the trial court with directions to exercise 

its sentencing discretion as to three of the prior prison terms. 

(Ibid.) Thus, on April 9, 1997, the trial court sentenced Banuelos

“on [his three] prior convictions which were found true as follows: 

[¶] As to each prior, [Banuelos] is sentenced to [one] year 

pursuant to . . . section 667.5[, subdivision ](b). Sentence is 

stayed pending the finality of sentence imposed in count 1 and 

[then] permanently stayed thereafter.”3

On November 1, 2022, pursuant to section 1172.75, the 

Department of Corrections and Rehabilitation (CDCR) identified 

Banuelos as a person serving a term for a judgment that includes 

an enhancement imposed under section 667.5, subdivision (b).

The trial court appointed counsel for Banuelos, and counsel 

argued Banuelos was entitled to resentencing under section 

1172.75.

On May 24, 2023, the court denied resentencing. It found

that because the section 667.5, subdivision (b) enhancements had 

2 The details of the underlying crimes are not relevant to 

this appeal, and, thus, we omit them.

3 The record does not contain an abstract of judgment.
4

been stayed, Banuelos was ineligible for resentencing under 

section 1172.75.

Banuelos timely appealed.

DISCUSSION

A. Standard of Review and General Principles of 

Statutory Construction

The proper interpretation of a statute is a question of law 

we review de novo. (People v. Lewis (2021) 11 Cal.5th 952, 961.) 

Our fundamental task is to determine the Legislature’s intent 

and effectuate the law’s purpose. (Ibid.) “ ‘ “ ‘ “We begin by 

examining the statute’s words, giving them a plain and 

commonsense meaning.” ’ ” ’ [Citation.] ‘ “[W]e look to ‘the entire 

substance of the statute . . . in order to determine the scope and 

purpose of the provision . . . . [Citation.]’ [Citation.] That is, we 

construe the words in question ‘ “in context, keeping in mind the 

nature and obvious purpose of the statute . . . .” [Citation.]’ ” 

(Ibid.) “We do not interpret the statute so literally as to 

contravene the apparent legislative intent, ‘ “ ‘and if a statute is 

amenable to two alternative interpretations, the one that leads to 

the more reasonable result will be followed.’ ” ’ ” (People v. 

Christianson, supra, 97 Cal.App.5th at p. 309.) “ ‘If the statute is 

ambiguous, we may consider a variety of extrinsic aids, including 

legislative history, the statute’s purpose, and public policy.’

[Citations.] Where ‘ “resolution of the statute’s ambiguities in a 

convincing manner is impracticable,” ’ the rule of lenity weighs in 

favor of interpreting the situation in favor of defendants. 

[Citation.]” (Ibid.)
5

B. Section 1172.75

Prior to January 1, 2020, section 667.5, subdivision (b) 

required that trial courts “impose a one-year term for each prior 

separate prison term or county jail term” that the defendant had 

served, unless the defendant had remained free of custody for at 

least five years. (§ 667.5, former subd. (b); People v. Jennings

(2019) 42 Cal.App.5th 664, 681.) Senate Bill No. 136 (2019-2020 

Reg. Sess.) amended section 667.5, subdivision (b) to limit the 

one-year prison prior enhancement to prison terms served for 

convictions of sexually violent offenses as defined in Welfare and 

Institutions Code section 6600, subdivision (b). (Stats. 2019, 

ch. 590, § 1; People v. Jennings, supra, at p. 681.)

In 2021, the Legislature passed Senate Bill No. 483 (2021-

2022 Reg. Sess.) to apply Senate Bill No. 136 retroactively. 

(Stats. 2021, ch. 728, § 1 [declaring “to ensure equal justice and 

address systemic racial bias in sentencing, it is the intent of the 

Legislature to retroactively apply . . . Senate Bill [No.] 136 . . . to 

all persons currently serving a term of incarceration in jail or 

prison for these repealed sentence enhancements”].) To achieve 

this goal, the Legislature enacted section 1172.75 (formerly 

§ 1171.1). (People v. Christianson, supra, 97 Cal.App.5th at 

p. 310; Stats. 2022, ch. 58, § 12; Stats. 2021, ch. 728, § 3.)

Section 1172.75, subdivision (a) declares any sentence 

enhancement “imposed prior to January 1, 2020” pursuant to 

section 667.5, subdivision (b), except for sexually violent offenses,

to be “legally invalid.”

Subdivision (b) of section 1172.75 directs that CDCR “shall 

identify those persons in their custody currently serving a term 

for a judgment that includes an enhancement described in 

subdivision (a) and shall provide the name of each person, along 
6

with [other information], to the sentencing court that imposed 

the enhancement.” (§ 1172.75, subd. (b).) CDCR is to provide the 

information “(1) [b]y March 1, 2022, for individuals who have 

served their base term and any other enhancements and are 

currently serving a sentence based on the enhancement . . . [¶] 

[and] (2) [b]y July 1, 2022, for all other individuals.” (Ibid.)

Under subdivision (c) of section 1172.75, “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 current judgment includes an 

enhancement described in subdivision (a), the court shall recall 

the sentence and resentence the defendant. The review and 

resentencing shall be completed as follows: [¶] (1) By October 1, 

2022, for individuals who have served their base term and any 

other enhancement and are currently serving a sentence based on 

the enhancement. [¶] (2) By December 31, 2023, for all other 

individuals.”

Section 1172.75, subdivision (d)(1) provides, “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 sentence would 

endanger public safety. Resentencing pursuant to this section 

shall not result in a longer sentence than the one originally 

imposed.”

C. Section 1172.75 Is Not Limited Only to Sentencing 

Enhancements that Were Imposed and Executed

The plain language of section 1172.75, subdivision (c) 

requires a court to provide a full resentencing to any defendant 

currently serving time on a judgment that includes a sentencing 
7

enhancement described in subdivision (a); in turn, subdivision (a) 

refers to “[a]ny sentence enhancement that was imposed prior to 

January 1, 2020, pursuant to” section 667.5, subdivision (b). 

(§ 1172.75, subd. (a).) As to the meaning of “imposed,” we agree 

with those opinions holding that section 1172.75 must be 

interpreted to include sentences for prison prior enhancements 

that have been imposed and stayed, particularly People v. 

Christianson, supra, 97 Cal.App.5th 300. (See also People v. 

Mayberry, supra, 102 Cal.App.5th 665; People v. Saldana, supra, 

97 Cal.App.5th 1270.) Thus, we do not reiterate the analysis in 

those opinions, and limit our discussion to addressing the 

Attorney General’s arguments in this appeal about why it 

believes these cases are wrongly decided.

Both the Attorney General and Banuelos point to People v. 

Gonzalez (2008) 43 Cal.4th 1118 to support their position. In 

Gonzalez, the Supreme Court analyzed the word “imposed” as 

used in section 12022.53, subdivision (f). It recognized that 

“imposed” could encompass an enhancement that was imposed 

and stayed: “[I]t is important to understand that the word 

‘impose’ applies to enhancements that are ‘imposed and then 

executed’ as well as those that are ‘imposed and then stayed. 

However, 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.]” (People v.

Gonzalez, supra, at p. 1125.) Construing the term in the context 

of that statutory scheme, however, the Gonzalez court held the 

use of the word impose in section 12022.53, subdivision (f), meant 

imposed and executed and not imposed and stayed. (People v. 

Gonzalez, supra, at p. 1126.)
8

The Attorney General argues we should follow Gonzalez’s

holding. However, as recognized in Christianson, Gonzalez’s

holding is of limited use where, as here, we must construe the 

word “imposed” in a different statutory scheme. Indeed, Gonzalez

observed that as to 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.” (Stats. 1997, ch. 503, § 1.)’

([People v. ]Gonzalez, supra, [43 Cal.4th] at p. 1129.)” (People v. 

Christianson, supra, 97 Cal.App.5th at p. 313.) In contrast, 

Senate Bill Nos. 138 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 Legislature to retroactively 

apply . . . Senate Bill [No.] 136 . . . to all persons currently

serving a term of incarceration in jail or prison for these repealed 

sentence enhancements’].)” (People v. Christianson, supra, at 

p. 314.) Further, through Senate Bill Nos. 136 and 483, the 

Legislature also sought to “reallocat[e] ‘wasteful’ spending from 

imprisonment to community-based services. [Citation.]” (People 

v. Rhodius, supra, 97 Cal.App.5th at p. 46.) Both these goals are 

best served by interpreting “imposed” broadly such that the 

statute reaches the largest number of persons eligible for relief. 

(See People v. Christianson, supra, at p. 314.)
9

The plain language of section 1172.75 also supports reading 

“imposed” to include an enhancement imposed and stayed. 

Subdivision (b) of section 1172.75 directs CDCR to identify all 

inmates “currently serving a term for a judgment that includes

an enhancement described in subdivision (a).” (Italics added.) “A 

judgment may include a sentence that has been imposed but 

suspended or stayed. [Citations.] Thus, . . . all that is required 

for the CDCR to identify an inmate under section 1172.75, 

subdivision (b) is for the enhancement to be included in the 

abstract of judgment, regardless of whether it is imposed or 

stayed. 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.” (People v. 

Christianson, supra, 97 Cal.App.5th at pp. 311-312.) “Indeed, the 

Legislature made a similar differentiation in subdivisions (b)(1) 

& (2) and (c)(1) & (2) [of section 1172.75], prioritizing those 

inmates that are currently serving time on an enhancement in 

the sense that they have already served the remainder of all 

other time imposed by the judgment.” (Id. at p. 313, fn. omitted.)

Relying on People v. Rhodius, supra, 97 Cal.App.5th 38, the 

Attorney General next argues that section 1172.75, subdivision 

(d)(1)’s directive that resentencing result in a lesser sentence

than the one originally imposed requires us to interpret 

“imposed” as excluding stayed enhancements. Otherwise, the 

Attorney General argues, the court would have to “ ‘arbitrarily 

lower a sentence’ ” in the case of a stayed enhancement because 

striking the enhancement will not actually lower the sentence.

(Id. at p. 44.) However, as Christianson observed, “When a 

punishment is stayed, as opposed to stricken, the trial court 
10

retains the ability to lift the stay and impose the term under 

certain circumstance, such as if an alternately imposed term is 

invalidated. (See, e.g., People v. Brewer (2014) 225 Cal.App.4th 

98, 104 . . . .) Thus, a stayed sentence enhancement remains as 

part of the judgment and continues to carry the potential for an 

increased sentence in certain circumstances, and removal of the 

stayed enhancement does provide some relief to the defendant by 

eliminating that potential.” (People v. Christianson, supra, 97 

Cal.App.5th at p. 312.) Thus, practically speaking, “removing the

stayed term from the abstract of judgment results in a ‘lesser 

sentence that the one originally imposed.’ ” (Ibid.)

The Attorney General also points us to legislative history 

that “Senate Bill [No.] 483 was directed to ‘the elimination of 

those enhancements [as] to people currently held in prisons and 

jails.’ ” However, the Attorney General does not describe why 

this matters to the issue at hand. This statement does not lead 

us to conclude that the Legislature intended the word “imposed”

to apply only to persons for whom the prison priors enhancement 

was imposed and executed, as it does not state the enhancement 

must be the only reason someone is currently held in custody. 

Rather, it simply differentiates between persons in custody and 

those no longer in custody. People in custody get a resentencing 

hearing; those out of custody do not. The policies behind section 

1172.75—to mitigate racial disparities in incarceration and to 

reallocate resources from imprisonment to community-based 

services—are not served by applying the section to persons no 

longer in custody.

Nor, for similar reasons, are we persuaded by the Attorney 

General’s suggestion that only those “ ‘currently serving a 

sentence based on the enhancement’ ” are entitled to 
11

resentencing. (Italics omitted.) Although section 1172.75, 

subdivision (c)(1) directs the trial court to complete resentencing 

for persons currently serving a sentence based on the 

enhancement by October 1, 2022, they are not the only persons 

entitled to resentencing. Subdivision (c)(2) also requires the trial 

court to complete resentencing by December 31, 2023, “for all 

other individuals” that had previously been identified by CDCR 

and verified by the court as serving a term for a judgment that 

includes an enhancement described in subdivision (a). 

(§ 1172.75, subd. (c)(2).)4

4 The Attorney General quotes from section 1 of Senate Bill 

No. 483, which states, “The Legislature finds and declares that in 

order to ensure equal justice and address systemic racial bias in 

sentencing, it is the intent of the Legislature to retroactively 

apply Senate Bill [No.] 180 of the 2017-[20]18 Regular Session 

and Senate Bill [No.] 136 of the 2019-[20]20 Regular Session to 

all persons currently serving a term of incarceration in jail or 

prison for these repealed sentence enhancements.” (Stats. 2021,

ch. 728, § 1.) However, as we explain in the text, the plain 

language of the statute refers to a greater group of persons that 

CDCR is to identify: those currently serving a term for a 

judgment that includes a sentence enhancement described in 

subdivision (a) of section 1172.75. (Id., subd. (b).) This is the 

group of persons the trial court is expected to resentence after 

verifying that the current judgment includes a sentencing 

enhancement described in subdivision (a) of section 1172.75. 

Christianson explains: “[T]he use of the word ‘verify’ suggests 

that the sentencing court is doing just that, verifying that the 

individual the CDCR identified is in fact an individual described 

by the statute, not looking to see if the inmate meets an 

additional requirement (i.e., that the enhancement is imposed

and not stayed). It does not follow logic or reason to read these 
12

Finally, the Attorney General suggests Christianson’s

analysis is flawed because it relied on People v. Brewer (2014) 225 

Cal.App.4th 98 and People v. Jones (1993) 5 Cal.4th 1142, when

neither case “clarif[ied] the Legislature’s intent behind the use of 

the [word impose] in section 1172.75, in reference to section 

667.5[, subdivision ](b) enhancements.”5 We disagree.

Christianson cited Brewer in two instances. First,

Christianson relied on Brewer for the proposition that a trial 

court “retains the ability to lift the stay and impose the term

under certain circumstance, such as if an alternately imposed 

term is invalidated.” (People v. Christianson, supra, 97 

Cal.App.5th at p. 312, citing People v. Brewer, supra, 225 

Cal.App.4th at p. 104.) The Attorney General does not develop 

argument or cite authority to dispute this point.

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 to then look at the same abstracts of 

judgment available to the CDCR to determine whether the 

previous court imposed additional time for, or stayed, the 

relevant enhancements.” (People v. Christianson, supra, 97 

Cal.App.5th at p. 312.)

5 To the extent the Attorney General suggests that 

Christianson’s analysis is unreliable because it is based on dicta 

in Jones and Brewer, we observe that “[a]lthough [dicta are] not 

binding, we may nevertheless consider the reasoning of those 

decisions to determine whether they have any persuasive effect 

under the facts presented here.” (People v. Valencia (2011) 201 

Cal.App.4th 922, 929; see also Evans v. City of Bakersfield (1994) 

22 Cal.App.4th 321, 328 [“it has often been stated that the dicta 

of our Supreme Court are highly persuasive”].)
13

Second, Christianson referred to Brewer and Jones in 

discussing whether the trial court erred in administratively 

striking the section 667.5, subdivision (b) enhancement rather 

than resentencing the defendant. 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.’ ” (People v. Christianson, supra, 97 

Cal.App.5th 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 then cited Jones and Brewer as “authority 

suggesting that section 667 allows for a stay in cases in which 

there is both a section 667 serious felony prior enhancement and 

a section 667.5, subdivision (b) enhancement based on the same 

underlying conviction.” (People v. Christianson, supra, at 

pp. 315-316, fn. omitted, citing People v. Jones, supra, 5 Cal.4th 

at p. 1150; People v. Brewer, supra, 225 Cal.App.4th at p. 106.)

Here, the trial court did not strike Banuelos’s section 667.5, 

subdivision (b) sentencing enhancement and did not resentence, 

finding instead that section 1172.75 was entirely inapplicable. 

Nor does the Attorney General argue staying Banuelos’s section 

667.5, subdivision (b) enhancements was improper in the first 

place. (Cf. People v. Mayberry, supra, 102 Cal.App.5th at p. 672 

[observing “that the two prior prison term enhancements were 

‘improperly stayed’ in the first instance,” but holding the 

defendant was entitled to resentencing under § 1172.75].) As 

such, Christianson’s reliance on Brewer and Jones does not 

undermine our reliance on Christianson’s holding in the appeal

before us.
14

DISPOSITION

The order is reversed and the matter is remanded for a 

resentencing hearing pursuant to section 1172.75 with regard to 

the section 667, subdivision (b) enhancements that were imposed 

but stayed.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

KELLEY, J.*

* Judge of the San Luis Obispo County Superior Court, 

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

the California Constitution.