1

Filed 12/5/23 P. v. Wyatt CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v. RICHARD LEIGH WYATT,

Defendant and Appellant. C098249 (Super. Ct. No s . 06F7071, 07F1009)

Officers found defendant Richard Leigh Wyatt in possession of methamphetamine and saw him place a handgun in a car just prior to his arrest. While defendant was in jail, deputies found a shank, a handmade syringe with a hypodermic needle, two spare needles, and two latex gloves in his cell. Defend ant’s girlfriend admitted sending him drugs in prison, and defendant admitted injecting methamphetamine while in jail.
In case No. 06F7071, a jury convicted d efendant of possession of a firearm by a felon and being an occupant in a car with a concealed wea pon

. The trial court found that defendant had two prior strike convictions and a prior prison term. On each count, the
trial court sentenced defendant to 25 years to life in prison and imposed a one

- year prior prison term enhancement under Penal Code for mer section 667.5 , subd ivision (b) , 1 but it stayed the sentence on the second count

.

1 Undesignated statutory references are to the Penal Code.2

In c ase No. 0 7 F1009 , a jury convicted defendant of possessi ng a controlled
substance and a weapon while in custody

. Again, the trial court found that defendant had two prior strike convictions and a prior prison term. It sentenced him to 25 years to life
on each conviction and imposed but stayed prior prison term enhancement s

. 2 In 2023, defendant filed a request for resentencing as to case Nos. 06F7071 and
07F1009 , asserting that the unstayed prior prison term enhancement was no longer v alid
under Senate Bill No. 483 ( 2021

- 2022 Reg. Sess. ) , which became effective January 1, 2022. (Stats. 2021, ch. 728, §§ 2, 3; Stats. 2022, ch. 58, §§ 11, 12 .) T he trial court struck
the unstayed prior prison term enhancement in case No. 06F7071, but declined to
otherwise resentence defendant

. The trial court subsequently struck the stayed prior prison term enhancement s in case Nos. 06F7071 and 07F1009

. Defendant now contends th e trial court should have r ecall ed his sentence and

r esentenc e d him

. 3 We agree. We will affirm the trial court’s order striking the prior prison term enhancement s but remand the matter with directions for the trial court to recall defendant’s sentence and comply with the requirements and considerations set
forth in section 1172.75, subdivision s (c) and ( d ).
DISCUSSION
Defendant contends the trial court should have recalled his sentence a nd
resentenced him. The People counter that the trial court lacked jurisdiction to enter any order . We will first address the jurisdictional issue

.

2 The imposition and subsequent stay of the enhancements resulted in an unauthorized sentence. (See, e.g., People v. Langston (2004) 33 Cal.4th 1237, 1241 [once the prior prison term is found tru e within the meaning of section 667.5, subdivision (b), the trial court may not stay the one

- year enhancement, which is mandatory unless stricken].) But this does not change our analysis and disposition.

3 We construe the appeal as being from case Nos. 0 6F7071 and 07F1009 on our own motion even though defendant did not write “07F1009” on the notice of appeal form , because the order appealed from relates to both cases and the parties address both cases in their briefs.3 A At the time the trial court sentenced defendant, section 667.5, subdivision (b) required it to impose th e one

- year prior prison term enhancement s . (Former § 667.5, subd. (b).) But those enhancement s became invalid under S enate Bill No. 483. (§ 1172.75, subd. (a).) As part of Senate Bill No. 483, the Legislature established a process to address
invalid enhancements. As relevant here, s ubdivision (b) of section 1172.7 5 directs the Secretary of the Department of Corrections and Rehabilitation (CDCR) to identify persons in its custody currently serving a term with a prior prison term enhancement an d to inform the sentencing court . (§ 1172.7 5 , subd. (b).) CDCR must do so by March 1,
2022 , for individuals who have already served their base term and any other enhancements and are currently serving the invalid enhancement (§ 1172.7 5 , subd. (b)(1) ) , an d it must do so by July 1, 2022, for all other s (§ 1172.7 5 , subd. (b)(2)). Defendant appears to be in the second group.
Section 1172.75 requires that u pon receiving the information from CDCR, the trial

court shall review the judgment, verify that it inclu des an invalid enhancement, and if so, recall the sentence and resentence the defendant. (§ 1172.7 5 , subd. (c).) The trial court must do this by October 1, 2022 , for individuals who already served their base term and any other enhancements and are curren tly serving the invalid enhancement (§ 1172.7 5 , subd. (c)(1)), and it must do so by December 31, 2023 , for all others (§ 1172.7 5 , subd. (c)(2)). Here, although defendant filed a petition for resentencing in the trial court, the
record is silent as to wheth er CDCR provided defendant’s name to the court. The People
argue that under the circumstances, the trial court lacked jurisdiction to strike the enhancement until it received defendant’s information from CDCR, citing People v

. Burgess (2022) 86 Cal. App.5 th 375 ( Burgess )

.4

In Burgess , the defendant had filed his own motion s to dismiss invalidated
enhanc e ments in February and March of 2022

. ( Burgess, supra , 86 Cal. App.5th at
p p. 378

- 379.) The trial court denied the motion s , concluding the defendant di d not have statutory authority to bring the m

. ( Id. at p. 3 79 .) The court of appeal held that the trial court lacked jurisdiction to adjudicate the motion s and the court of appeal lacked jurisdiction to consider the appeal

. ( Id. at p. 382.) The court added that in any event,
section 1172.75 does not contemplate resentencing relief initiated by an individual
defendant

. ( Burgess, at pp. 382

- 384.) According to the court, the procedure for striking

a n invalid enhancement and resentencing is on ly triggered by receipt of information from CDCR. ( Id. at p. 384 ; see also People v. Escobedo ( 2023) 95 Cal.App.5 th 440

. ) In this case, however, we presume CDCR performed its duty because the appellate
record does not establish otherwise. (Evid. Code , § 664 [“It is presumed that official duty has been regularly performed.”]. ) On this particular record, we decline to find a lack of jurisdiction. 4

B We next address defendant’s cha llenge to the trial court order. Under
section 117 2 .75, subdivision ( c ), if the trial court identifies a qualifying enhancement,
it shall “ recall the sentence and resentence the defendant. ” S ubdivision (d) sets forth
various considerations for the resent encing and specifies that the trial court shall appoint
counsel for defendant.

4 Moreover, on this record it does n ot matter whether defendant was authorized to file his own request for resentencing. Because we presume CDCR performed its duty, the trial court had a duty under the statute as well , irrespective of defendant’s petition

. Although the trial court had more time in which to perform, we do not fault it for acting expediently.5

Here, t he trial court should have appointed counsel and addressed the requirements
and considerations set forth in section 1172.75, subdivision s (c) and ( d )

. ( People v

. Monroe (2022) 85 Cal. App.5th 393, 402.)
DISPOSITION
The trial court’s order is affirmed t o the extent it struck the former section 667.5, subdivision (b) prior prison term enhancement s

. The matter is remanded to the trial court
with direction s to recall defendant’s sentence and comply with the requirements and
considerations set for th in sect ion 1172.75, subdivision s (c) and ( d ).

/S/ MAURO, Acting P. J.

We concur:

/S/ DUARTE, J.

/S/ BOULWARE EURIE, J.