Stayed Prison Priors Are Imposed

People v. Saldana (2023) 97 Cal.App.5th 1270 [316 Cal.Rptr.3d 319, 321–326]

Summary: In 2013, Saldana was found guilty of possession for sale of a controlled substance (Health & Saf. Code, § 11378) and he was sentenced to 25 years to life in state prison as a three strikes offender. At the time, the trial court imposed and stayed four prior prison term enhancements found true under Penal Code section 667.5, subdivision (b).

Years later, defense counsel moved to strike the four prior prison term enhancements under section 1172.75 and requested a full resentencing under that statute and People v. Buycks (2018) 5 Cal.5th 857, 236 Cal.Rptr.3d 84, 422 P.3d 531. The trial court applied section 1172.75 to strike the previously stayed enhancements but declined to conduct a full resentencing due to the enhancements’ status as stayed.

On appeal, the Court vacated the sentence and remanded for a full resentencing proceeding.

The Attorney General filed a petition for rehearing, indicating that the concession was presented in error, and informing this court that this same issue was pending in another appellate court with more extensive briefing. The Court ordered supplemental briefing asking the parties to brief the following questions:

  1. Do any (or all) of the four stayed one-year prior prison term enhancements at issue in this case constitute an unauthorized sentence? (See, inter alia, People v. Langston (2004) 33 Cal.4th 1237, 1241, 17 Cal.Rptr.3d 596, 95 P.3d 865[“[o]nce the prior prison term is found true within the meaning of section 667.5, [subd.](b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken”].)
  2. Assuming the stayed enhancements constitute an unauthorized sentence, how does the stayed enhancements’ status as unauthorized factor into the analysis of whether the trial court was required to conduct a full resentencing at the time of the enhancements’ striking pursuant to section 1172.75?
  3. Did the status of the enhancements as stayed affect defendant’s entitlement to a full resentencing under the relevant statute; is a defendant with a stayed section 667.5, subdivision (b) enhancement generally entitled to a full resentencing under section 1172.75?

The Court of Appeal held that defendant is entitled to a full resentencing on remand. Because the trial court declined to provide a full resentencing, it vacated the sentence and remanded.

Two additional cases on the issue of a defendant’s entitlement to resentencing under section 1172.75 where the (now invalid) enhancements were imposed and stayed have been published by other courts. In People v. Renteria (2023) 96 Cal.App.5th 1276, 315 Cal.Rptr.3d 171 (Renteria), the Attorney General conceded, and the appellate court agreed, that the trial court erred when it failed to provide defendant with the opportunity for a full resentencing under the same circumstances presented here. In People v. Rhodius (2023) 97 Cal.App.5th 38, 315 Cal.Rptr.3d 338 (Rhodius), the appellate court concluded the defendant was not entitled to resentencing because the now invalid enhancements were stayed after imposition, and therefore were not “imposed” as required by section 1172.75 for resentencing eligibility.


In January 2023, after the Department of Corrections and Rehabilitation had referred Saldana to the trial court as having a judgment with one or more qualifying priors, defendant filed a motion for resentencing under section 1172.75, which provides in relevant part that “[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.” (§ 1172.75, subd. (a).) Saldana also requested that the trial court conduct a full resentencing hearing to revisit all its sentencing choices. The prosecution opposed the motion, arguing section 1172.75 did not apply to the stayed prior prison term enhancements.

At a hearing in February 2023, the trial court struck the previously stayed prior prison term enhancements (§ 1172.75, subd. (a)), but found that it was not permitted to conduct a full resentencing hearing under section 1172.75, subdivision (d). The court opined that striking a stayed enhancement did not trigger a reopening of sentencing as would an unstayed enhancement. Saldana appealed.

The Stayed Enhancements as Unauthorized

Saldana was originally sentenced in 2013 and the trial court imposed and then stayed the four one-year prior prison term enhancements found true under section 667.5, subdivision (b). The trial court stayed the enhancements in error, resulting in an unauthorized sentence. (See People v. Langston, supra, 33 Cal.4th at p. 1241. [trial court required to impose or strike one-year prior prison term enhancement, but it could not stay the one-year term].)

Defendant argues the enhancements’ stayed status and the resulting illegality of the sentence does not affect his entitlement to a full resentencing following the enhancements’ striking. He reasons that “[b]ecause they still could have been imposed, improperly stayed enhancements [that] had not yet been corrected should be treated no differently than those for which sentence was not stayed.”

The Stayed Enhancements as Unexecuted

Section 1172.75 expressly provides that if a judgment includes a qualifying prior prison term enhancement, the trial court shall recall the sentence and resentence the defendant. (§ 1172.75, subd. (c).) At any such resentencing, the court shall “apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).)

“By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402; see also People v. Buycks, supra, 5 Cal.5th at p. 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ ”].)

As the Supreme Court has observed, ‘it 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.” ’ ([Gonzalez, supra,] 43 Cal.4th [at p.] 1125.)” (Renteria, supra, 96 Cal.App.5th at p. 1282.) Gonzalez concerned contradictory subdivisions of section 12022.53, dealing with gun enhancements. Our high court decided that the use of “imposed” within one of the subdivisions was in fact shorthand for “imposed and executed” as to that particular statutory scheme, construed as such in order to harmonize the obvious conflict between section 12022.53, subdivisions (f) and (h), one of which limited “imposition” of certain multiple enhancements and one of which precluded their striking.

 “The statutory scheme at issue here involves statutory amendments 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. Section 1172.75, subdivision (d)(2) requires the trial court to apply ‘any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.’ Subdivision (d)(3) further permits the trial court to consider a broad range of postconviction factors ‘and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.’ (§ 1172.75, subd. (d)(3).) The Legislature intended to provide broad relief to all defendants impacted by the now invalid section 667.5, subdivision (b) enhancements.”

The presence of a stayed term or enhancement is not without significance; it is part of the sentence and remains available if its execution becomes necessary and proper for any legally sanctioned reason. “When a punishment is stayed, as opposed to stricken, the 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…. 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.” (Christianson, supra, 97 Cal.App.5th at ––––, 315 Cal.Rptr.3d at 398–99.)

Saldana was entitled to a full resentencing under the terms of section 1172.75, including the application of “any other changes in law that reduce sentences or provide for judicial discretion ….” (§ 1172.75, subd. (d)(2).)


The sentence was vacated, and the matter is remanded for resentencing consistent with section 1172.75 and all current sentencing statutes that apply to defendant.

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