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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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. Nos. 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. Defendant’s girlfriend admitted sending him 

drugs in prison, and defendant admitted injecting methamphetamine while in jail.

In case No. 06F7071, a jury convicted defendant of possession of a firearm by a 

felon and being an occupant in a car with a concealed weapon. 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 former section 667.5, subdivision (b),

1 but it 

stayed the sentence on the second count.

1 Undesignated statutory references are to the Penal Code.
2

In case No. 07F1009, a jury convicted defendant of possessing 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 enhancements.

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07F1009, asserting that the unstayed prior prison term enhancement was no longer valid

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.) The 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 enhancements in case Nos. 06F7071 and 07F1009.

Defendant now contends the trial court should have recalled his sentence and

resentenced him.

3 We agree. We will affirm the trial court’s order striking the prior 

prison term enhancements 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, subdivisions (c) and (d).

DISCUSSION

Defendant contends the trial court should have recalled his sentence and 

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 true 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. 06F7071 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 the one-year prior prison term enhancements. (Former § 667.5, 

subd. (b).) But those enhancements became invalid under Senate 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, subdivision (b) of section 1172.75 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 and 

to inform the sentencing court. (§ 1172.75, 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 (§ 1172.75, 

subd. (b)(1)), and it must do so by July 1, 2022, for all others (§ 1172.75, subd. (b)(2)). 

Defendant appears to be in the second group.

Section 1172.75 requires that upon receiving the information from CDCR, the trial 

court shall review the judgment, verify that it includes an invalid enhancement, and if so, 

recall the sentence and resentence the defendant. (§ 1172.75, 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 currently serving the invalid enhancement (§ 1172.75, 

subd. (c)(1)), and it must do so by December 31, 2023, for all others (§ 1172.75, 

subd. (c)(2)).

Here, although defendant filed a petition for resentencing in the trial court, the 

record is silent as to whether 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.5th 375 (Burgess).
4

In Burgess, the defendant had filed his own motions to dismiss invalidated 

enhancements in February and March of 2022. (Burgess, supra, 86 Cal.App.5th at 

pp. 378-379.) The trial court denied the motions, concluding the defendant did not have 

statutory authority to bring them. (Id. at p. 379.) The court of appeal held that the trial 

court lacked jurisdiction to adjudicate the motions 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

an invalid enhancement and resentencing is only triggered by receipt of information from 

CDCR. (Id. at p. 384; see also People v. Escobedo (2023) 95 Cal.App.5th 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 challenge to the trial court order. Under 

section 1172.75, subdivision (c), if the trial court identifies a qualifying enhancement, 

it shall “recall the sentence and resentence the defendant.” Subdivision (d) sets forth 

various considerations for the resentencing and specifies that the trial court shall appoint 

counsel for defendant.

4 Moreover, on this record it does not 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, the trial court should have appointed counsel and addressed the requirements 

and considerations set forth in section 1172.75, subdivisions (c) and (d). (People v.

Monroe (2022) 85 Cal.App.5th 393, 402.)

DISPOSITION

The trial court’s order is affirmed to the extent it struck the former section 667.5, 

subdivision (b) prior prison term enhancements. The matter is remanded to the trial court 

with directions to recall defendant’s sentence and comply with the requirements and 

considerations set forth in section 1172.75, subdivisions (c) and (d).

 /S/

MAURO, Acting P. J.

We concur:

 /S/

DUARTE, J.

 /S/

BOULWARE EURIE, J.