Filed 6/4/24 P. v. Avalos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ANTHONY AVALOS,

Defendant and Appellant.

F086715

(Super. Ct. No. CRM026522)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Steven K. 

Slocum, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, 

Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

The trial court found defendant Michael Anthony Avalos ineligible for 

resentencing pursuant to Penal Code1section 1172.75 because the sentencing 

enhancements imposed for his having suffered a prior prison term (§ 667.5, former subd. 

(b)) were imposed and stayed during his initial sentencing proceedings. 

We conclude section 1172.75 applies to prior prison term enhancements that have 

been imposed and stayed. We reverse and remand for the trial court to recall defendant’s 

sentence and resentence him in compliance with section 1172.75.

PROCEDURAL BACKGROUND2

On May 31, 2013, a jury found defendant guilty of attempted voluntary 

manslaughter (§§ 192, subd. (a), 664; count 1) and assault with a deadly weapon (§ 245, 

subd. (a)(1); count 2). On count 1, the jury found true an enhancement for personal use 

of a deadly weapon (§ 12022, subd. (b)(1)). As to both counts, the jury found gang and 

great bodily injury enhancements to be true (§§ 186.22, subd. (b)(1)(C), (4), 12022.7, 

subd. (a)). In a bifurcated court trial, the trial court found true that defendant had suffered 

a prior serious felony conviction (§ 667, subd. (a)(1)), which also constituted a “strike” 

(§§ 667, subds. (b)–(i), 1170.12), and for which he suffered a prior prison term (§ 667.5, 

former subd. (b)). These enhancements, all for the same offense, were each found true 

twice – once on each count. (People v. Avalos (Apr. 7, 2015, F067923) [nonpub. opn.] 

(Avalos).) 

The court sentenced defendant on count 1 to the middle term of three years, 

doubled to six years due to the strike, plus 10 years for the gang enhancement, one year 

for the deadly weapon use enhancement, five years for the prior serious felony 

1 Undesignated statutory references are to the Penal Code.

2 The underlying facts are irrelevant to the issues raised on appeal. We therefore 

dispense with a statement of facts.
3.

enhancement, and one year for the prior prison term enhancement, for an aggregate term 

of 23 years. On count 2, the court sentenced defendant to the middle term of three years, 

doubled to six years due to the strike, plus 10 years for the gang enhancement, five years 

for the prior serious felony enhancement, and one year for the prior prison term

enhancement, for an aggregate term of 22 years. Sentence on count 2 was stayed 

pursuant to section 654. The court likewise stayed, pursuant to section 654, punishment 

for the great bodily injury enhancement to both counts. (Avalos, supra, F067923.) 

On appeal,3this court determined the trial court erroneously imposed the prior 

serious felony enhancement and prior prison term enhancement on both counts. 

Accordingly, we struck the redundant enhancements to count 2. We also determined the 

trial court erroneously imposed both the prior serious felony enhancement and prior 

prison term enhancement, both of which arose out of the same offense, on count 1. 

Accordingly, we stayed the prior prison term enhancement on count 1.4 We directed the 

3 During the pendency of the appeal, the trial court issued a first amended abstract 

of judgment. It appears the purpose of the first amended abstract of judgment was to 

increase the amount of restitution ordered to be paid to the California Victim 

Compensation Board. 

4 The trial court was not permitted to impose a one-year term for the prior prison 

term enhancement in addition to a five-year term for the prior serious felony conviction 

which gave rise to the prior prison term. (People v. Jones (1993) 5 Cal.4th 1142, 1150.) 

In Jones, a prior prison term enhancement erroneously imposed in such circumstances 

was stricken, rather than stayed. (Id. at p. 1153.) “Once the prior prison term is found 

true within the meaning of section 667.5[, former subdivision ](b), the trial court may not 

stay the one-year enhancement, which is mandatory unless stricken.” (People v. 

Langston (2004) 33 Cal.4th 1237, 1241; accord, People v. Saldana (2023) 97 Cal.App.5th 

1270, 1275, rev. granted Mar. 12, 2024, S283547 (Saldana); People v. Baldwin (2018) 30 

Cal.App.5th 648, 653; People v. Lua (2017) 10 Cal.App.5th 1004, 1020; see § 1170.1, 

subd. (d)(1).) Nonetheless, there is arguably some authority that a court may stay, rather 

than strike, a prior prison term enhancement in such circumstances. (See People v. 

Christianson (2023) 97 Cal.App.5th 300, 315–316, rev. granted Feb. 21, 2024, S283189 

(Christianson).) Ultimately, we need not resolve whether the stay of the prior prison term 

enhancement in the instant case was appropriate. 
4.

trial court to issue an amended abstract of judgment to reflect these modifications. 

(Avalos, supra, F067923.) The remittitur issued on June 16, 2015. 

Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate 

Bill No. 136) amended section 667.5, subdivision (b) to provide that a prior prison term 

enhancement may be imposed only if the prior prison term was imposed for certain 

qualifying sexually violent offenses.5 

It appears the trial court did not amend the abstract of judgment, as required by 

this court’s remittitur, until April 6, 2021, when it issued a second amended abstract of 

judgment. The second amended abstract of judgment omitted the now-stricken status 

enhancements to count 2 and noted that the prior prison term enhancement to count 1 was 

stayed.6 

Effective January 1, 2022, Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate 

Bill No. 483) retroactively invalidated prior prison term enhancements previously 

imposed under section 667.5, former subdivision (b). (Stats. 2021, ch. 728, § 3; see 

former § 1171.1 (now § 1172.75).

7

) Senate Bill No. 483 also provided a procedure for 

recall and resentencing of individuals whose prior prison term enhancements had been 

rendered invalid by the bill. (Former § 1171.1.) That procedure is now codified in 

section 1172.75. 

5 Defendant’s prior prison term enhancements were not imposed for a sexually 

violent offense. 

6 The second amended abstract of judgment also listed the restitution order as a 

financial obligation pursuant to section 1202.4, subdivision (f), rather than as previously 

listed as an “[o]ther order[].” The amount of restitution remained unchanged.

7 Section 1171.1 has been renumbered section 1172.75. (Stats. 2022, ch. 58, § 12.) 

Except where indicated, we refer to the current section 1172.75.
5.

Although not evidenced in the record, the parties agree that, at some point, the 

Department of Corrections and Rehabilitation identified defendant as a person serving a 

term that included an invalid prior prison term enhancement as described in section 

1172.75, subdivision (a). On October 3, 2022, the court issued an order stating that it had 

reviewed the judgment and determined it included one or more prior prison term 

enhancements and that defendant “qualifie[d] for a recall and resentencing in this matter.” 

Accordingly, the court appointed counsel to represent defendant “in the recall and 

resentencing in this matter.” The court also set the matter for hearing. 

Thereafter, defendant filed a sentencing memorandum, arguing the prior prison 

term enhancement must be stricken and his sentence further reduced based on intervening 

changes in law. 

The matter was heard on August 4, 2023. At the start of the hearing, defense 

counsel stated that, at the last appearance, the trial court had indicated it did not believe 

defendant was eligible for resentencing because the prior prison term enhancement was 

stayed on appeal. However, defense counsel argued that defendant was eligible for full 

resentencing irrespective of whether the enhancement was stayed. The People conceded 

the prior prison term enhancement should be dismissed but argued defendant was not 

entitled to a full resentencing. The trial court determined the “enhancement was not 

imposed. There was actually an option for the Court. It can impose it or stay it, and it 

was not imposed. It was stayed.” Because the court determined the enhancement “was 

not imposed,” it determined defendant was ineligible for resentencing. 

DISCUSSION

I. Overview of the section 1172.75 procedure.

The section 1172.75 resentencing process begins with corrections officials: “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 
6.

subdivision (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.” (§ 1172.75, subd. (b).) The Department of Corrections and 

Rehabilitation was to provide this information to the trial courts on a staggered timeline, 

with the last of such identifications occurring by July 1, 2022. (§ 1172.75, subd. (b)(2).)

Receipt of information from corrections officials regarding a defendant’s 

resentencing eligibility triggers review by the trial court: “Upon receiving the 

information described in [section 1172.75,] subdivision (b), the court shall review the 

judgment and verify that the current judgment includes a sentencing enhancement 

described in [section 1172.75,] subdivision (a). If the court determines that the current 

judgment includes an enhancement described in [section 1172.75,] subdivision (a), the

court shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).) The 

review and resentencing process also was conducted on a staggered timeline, and all 

eligible individuals were to be resentenced by December 31, 2023. (§ 1172.75, subd. 

(c)(1)–(2).)

Section 1172.75 provides that resentencing “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.” (§ 1172.75, subd. (d)(1).) In addition, 

section 1172.75 requires that courts apply any “changes in law that reduce sentences or 

provide for judicial discretion,” and permits consideration of postconviction factors in the 

resentencing inquiry. (§ 1172.75, subd. (d)(2)–(3).) Finally, section 1172.75 requires 

imposition of terms no higher than the middle term unless certain conditions are met. 

(§ 1172.75, subd. (d)(4).) 
7.

II. When section 1172.75 is applicable, it statutorily confers jurisdiction in the

trial court to resentence defendant.

“In general, ‘ “once a judgment is rendered and execution of the sentence has 

begun, the trial court does not have jurisdiction to vacate or modify the sentence.” ’ 

[Citation.] However, there are many important exceptions to this general rule.” (People 

v. Cota (2023) 97 Cal.App.5th 318, 329.) Section 1172.75 is one of these exceptions. 

(Cota, at pp. 332–333.)

III. Standard of review.

“The proper interpretation of a statute is a question of law we review de novo.” 

(People v. Lewis (2021) 11 Cal.5th 952, 961.) “The court’s role in construing a statute is 

to ‘ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ 

[Citations.] In determining the Legislature’s intent, a court looks first to the words of the 

statute. [Citation.] ‘[I]t is the language of the statute itself that has successfully braved 

the legislative gauntlet.’ [Citation.]” (People v. Snook (1997) 16 Cal.4th 1210, 1215.) 

“We must look to the statute’s words and give them their usual and ordinary meaning.” 

(People v. Gonzalez (2008) 43 Cal.4th 1118, 1126 (Gonzalez).) “If there is no ambiguity 

in the language, we presume the Legislature meant what it said and the plain meaning of 

the statute governs.” (Snook, at p. 1215.)

IV. Section 1172.75 applies to stayed prior prison term enhancements.

Under section 1172.75, subdivision (a), “[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 

in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” 

(Italics added.) 

Section 1172.75, subdivision (d)(1) 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 . . . .” (Italics added.) 
8.

The Attorney General argues we must adopt the meaning of the term “imposed” in 

section 1172.75, subdivision (a) that best harmonizes with the mandate in section 

1172.75, subdivision (d)(1) that resentencing result in a lesser sentence. The Attorney 

General asserts a lesser sentence would occur only if the imposed prior prison term 

enhancement was imposed and executed. The Attorney General further asserts that, if 

one were to conclude there was an ambiguity in the language of the statute, the 

“legislative findings” of Senate Bill No. 483 establish an intent to reduce incarceration 

time. “[I]mposed” in section 1172.75, subdivision (a) does not extend therefore to prior 

prison term enhancements that were imposed and stayed. 

The Attorney General asks us to follow the reasoning in People v. Rhodius (2023) 

97 Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius). Rhodius

involved a similar situation. Defendant pled guilty and admitted two prior prison term 

enhancements. The sentencing court imposed one year for each enhancement and then 

stayed the punishment. (Id. at p. 41.) At a later hearing held under section 1172.75, the 

trial court vacated the sentence on the two prior prison term enhancements and ordered 

them stricken, but otherwise denied full resentencing. (Rhodius, at pp. 41–42.) On 

appeal, the defendant and the Attorney General presented the same arguments presented 

here. (Ibid.) The Fourth District Court of Appeal, Division Two concluded the express 

language in section 1172.75, subdivision (d)(1) requiring the resentencing to “result in a 

lesser sentence than the one originally imposed as a result of the elimination of the 

repealed enhancement,” and the legislative history behind the enactment of Senate Bills 

Nos. 136 and 483 require the conclusion section 1172.75 does not invalidate prior prison 

term enhancements that were imposed but stayed. (Rhodius, at pp. 43–49.) 

We agree that, absent a finding “by clear and convincing evidence that imposing a 

lesser sentence would endanger public safety,” the language of the statute requires 

resentencing to “result in a lesser sentence than the one originally imposed as a result of 

the elimination of the repealed enhancement.” (§ 1172.75, subd. (d)(1).) We also agree 
9.

that, as summarized in Rhodius, the legislative history stated in the Senate Committee on 

Public Safety Analyses for Senate Bill No. 136 signals intent “(1) [that] sentencing 

enhancements are ineffective and disproportionately subject the ‘Black and Latino’ 

communities to longer periods of incarceration; (2) [to] end[] double punishment for prior 

convictions; [and] (3) [to] reallocate[] ‘wasteful’ spending from imprisonment to 

community-based services.” (Rhodius, supra, 97 Cal.App.5th at p. 46, rev. granted.) 

Similarly, we agree with Rhodius that the legislative history stated in the Senate 

Committee on Public Safety Analyses for Senate Bill No. 483 signals intent “to provide 

relief for ‘[p]eople in California jails and prison . . . still burdened by mandatory 

enhancements’ ”; to ensure “ ‘ “that no one is serving time based on rulings that 

California has already deemed unfair and ineffective” ’ ”; to “provide relief for ‘ “[t]hose 

who . . . continue to be separated from their families and communities” ’ ”; and to reduce 

the prison costs caused by sentencing enhancements. (Rhodius, at pp. 46–47.) 

We disagree, however, with the conclusion in Rhodius that section 1172.75 does 

not invalidate prior prison term enhancements that were imposed and stayed. (Rhodius, 

supra, 97 Cal.App.5th at p. 49, rev. granted.) 

First, the Attorney General premises his position on the presupposition that section 

667.5, former subdivision (b) enhancements that were imposed and stayed have no 

impact on defendant’s sentence. We disagree. 

In Gonzalez, supra, 43 Cal.4th 1118, our Supreme Court examined a different 

statutory scheme, i.e., firearm enhancements under sections 12022.53 and 12022.5, to 

determine the breadth of the term “impose” used in those statutes. (Gonzalez, at 

pp. 1123–1125.) In its analysis, it discussed the effect of staying an enhancement. It 

noted the legislative history behind that statutory scheme disclosed an intent that felons 

who use firearms in the commission of their crimes remain in prison for the longest time 

possible. (Gonzalez, at p. 1129.) The jury found true the firearm enhancements of 

subdivisions (b), (c), and (d) of section 12022.53 and the firearm enhancement in section 
10.

12022.5, former subdivision (a)(1). (Gonzalez, at p. 1123.) Section 12022.53, 

subdivision (f) allowed only one additional term of imprisonment to be imposed and 

required that it be the enhancement under section 12022.53 that provided the longest term 

of imprisonment. The enhancement under section 12022.5 was not to be imposed in 

addition to the enhancement imposed under section 12022.53. (Gonzalez, at p. 1125.) In 

answering the question of whether the firearm enhancements, other than the enhancement 

with the longest term of imprisonment, should be stricken or stayed, our Supreme Court 

found “staying rather than striking the prohibited firearm enhancements serves the 

legislative goals of section 12022.53 . . . .” (Id. at p. 1129.) This is because staying them 

made them “readily available should the section 12022.53 enhancement with the longest 

term be found invalid on appeal . . . .” (Ibid.)

Imposed-but-stayed prior prison term enhancements carry the possibility of 

execution. (People v. Brewer (2014) 225 Cal.App.4th 98, 104 (Brewer).) That includes 

the two prior prison term enhancements originally imposed here. If “imposed” in 

subdivision (a) of section 1172.75 is read to include stayed prior prison term 

enhancements, then striking them now as invalid eliminates their impact from the 

“originally imposed” sentence referred to in section 1172.75, subdivision (d)(1) resulting 

in a “lesser sentence than the one originally imposed.” (Christianson, supra, 97 

Cal.App.5th at p. 312, rev. granted; see Saldana, supra, 97 Cal.App.5th at p. 1278, rev. 

granted.)

Second, the Legislature is presumed to be aware of all laws in existence when it 

passes or amends a statute. (In re Greg F. (2012) 55 Cal.4th 393, 407.) At the time the 

Legislature passed Senate Bill No. 483, a court was not generally permitted to stay a prior 

prison term enhancement (People v. Langston, supra, 33 Cal.4th at p. 1241), except in 

specified sentencing situations. In Brewer, supra, 225 Cal.App.4th 98, two 

enhancements alleged pursuant to section 667.5, subdivision (a) were found true. 

(Brewer, at p. 102.) Section 667.5, subdivision (a) authorizes a three-year enhancement 
11.

for “each prior separate prison term served,” when a current offense and the prior offense 

are both violent felonies. In addition, two enhancements alleged pursuant to section 

667.5, former subdivision (b), which authorized a one-year enhancement for each prior 

separate prison term served, were found true. (Brewer, at p. 103.) The two section 

667.5, former subdivision (b) enhancements were for the same prison terms that served as 

the basis for the section 667.5, subdivision (a) enhancements. (Brewer, at p. 103.) 

“ ‘[M]ultiple prior convictions served concurrently constitute one separate prison term for 

which only one sentence enhancement can be imposed.’ ” (Brewer, at p. 104.) Former 

subdivision (b) of section 667.5 mandated the application of the enhancement except 

when subdivision (a) applied. The former subdivision (b) enhancements were, therefore, 

precluded. The trial court imposed the two section 667.5, subdivision (a) enhancements, 

and imposed then stayed the section 667.5, former subdivision (b) enhancements. 

(Brewer, at p. 103.) The order staying the section 667.5, former subdivision (b) 

enhancements was made erroneously pursuant to section 654.8(Brewer, at p. 104.) On 

appeal, a question was whether the section 667.5, former subdivision (b) enhancements 

should have been stayed or stricken. (Brewer, at p. 101.) The Court of Appeal affirmed 

the staying of those enhancements. (Id. at pp. 104–105.) It reasoned: “California Rules 

of Court, rule 4.447 (rule 4.447) expressly authorizes a stay of an enhancement when ‘an 

enhancement that otherwise would have to be either imposed or stricken is barred by an 

overriding statutory prohibition. In that situation—and that situation only—the trial court 

can and should stay the enhancement.’ ” It explained why. “ ‘This rule is intended “to 

avoid violating a statutory prohibition or exceeding a statutory limitation, while 

preserving the possibility of imposition of the stayed portion should a reversal on appeal 

reduce the unstayed portion of the sentence.” ’ ” Staying the section 667.5, former

8 Section 654 “does not apply to prior prison term enhancements that focus on a 

defendant’s status as a repeat offender rather than on the acts underlying the convictions. 

[Citation.]” (Brewer, supra, 225 Cal.App.4th at p. 104.) 
12.

subdivision (b) enhancements “serves the purpose of rule 4.447 by allowing for the 

imposition of the stayed sentence if, for example, the qualifying section 667.5[, 

subdivision ](a) felonies are reversed on appeal.” (Brewer, at p. 104.) 

It is clear from the plain language of subdivision (a) of section 1172.75 that the 

Legislature rendered sentence enhancements imposed pursuant to former subdivision (b) 

of section 667.5 legally invalid, except where imposed for a qualifying sexually violent 

offense. Laws in existence when section 1172.75 was enacted allowed those sentence 

enhancements to be stayed under certain circumstances. Knowing this, if the Legislature 

intended for the language in subdivision (a) of section 1172.75 to limit legal invalidity to 

section 667.5, former subdivision (b) enhancements that were imposed and executed it 

could have done so. It did not. 

Defendant was identified by the Department of Corrections and Rehabilitation as a 

person in custody “currently serving a term for a judgment that includes an enhancement 

described in [section 1172.75,] subdivision (a)” (§ 1172.75, subd. (b)), i.e., “[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” (§ 1172.75, subd. (a)). Therefore, defendant was entitled to, but 

did not receive, a recall of his sentence and resentencing under the terms of section 

1172.75, which would include the application of “any other changes in law that reduce 

sentences or provide for judicial discretion” (§ 1172.75, subd. (d)(2)) and consideration 

of “postconviction factors” militating against continued incarceration (§ 1172.75, 

subd. (d)(3)). 
13.

DISPOSITION

The trial court’s order finding defendant ineligible for resentencing under section 

1172.75 is reversed. The matter is remanded to the trial court with instructions to recall 

defendant’s sentence and resentence him in compliance with the statute.

DETJEN, J.

WE CONCUR:

LEVY, Acting P. J.

SMITH, J.