Filed 7/8/26 P. v. Beets 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089086
Plaintiff and Respondent,
(Super. Ct. No. CRF52736)
v.
RICKY DEAN BEETS, JR., OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On September 27, 2015, defendant Ricky Dean Beets, Jr., and his accomplices
arrived at a property occupied by a 72-year-old man and represented themselves to be
police officers. After ordering the man to the ground and beating him with a pipe,
defendant and the others stole several marijuana plants, a vehicle, and a wallet from
another worker on the property. In 2020, defendant pled guilty to second degree robbery
and admitted two enhancements. Pursuant to the plea, the trial court imposed a 12-year
sentence, which included one upper term, and further resentenced defendant to four
consecutive one-year four-month terms as to three existing prison sentences, one of
which included a prior prison term enhancement. In 2024, the trial court resentenced
defendant pursuant to Penal Code section 1172.751 to a total term of 17 years 4 months,
by reimposing an upper term sentence on one of the robbery counts and striking the now
invalid one-year prior prison term enhancement.
On appeal, defendant challenges the imposition of the upper term for his robbery
convictions based on Senate Bill No. 567 (2021–2022 Reg. Sess.), which limits the trial
court’s ability to impose upper term sentences absent a stipulation by a defendant or a
finding of aggravating circumstances by a trier of fact. He also argues that the trial court
erred in failing to recalculate his custody credits. The People concede the latter issue but
argue that section 1172.75 permits an upper term sentence if imposed originally.
We requested supplemental briefing as to whether defendant was eligible for
resentencing pursuant to section 1172.75 because he was originally sentenced after
January 1, 2020, and the Department of Corrections and Rehabilitation (CDCR) failed to
identify defendant for resentencing. If defendant was not eligible for resentencing, the
parties were to address what legal remedy was otherwise available to set side defendant’s
illegally imposed enhancement.
1 Undesignated statutory references are to the Penal Code.
2.
The parties concede that section 1172.75 is not applicable to defendant and the
trial court was without jurisdiction to recall and resentence defendant pursuant to that
section. Defendant argues, however, that the trial court had jurisdiction to recall and
resentence based upon the motion he filed pursuant to section 1172.1 and we should treat
this appeal as from the court’s order in response to that motion or, in the alternative, as a
petition for writ of habeas corpus. The People argue that the trial court did not rule on
defendant’s section 1172.1 motion and, therefore, defendant may not appeal the court’s
inaction. However, the People agree that we should treat this appeal as a petition for writ
of habeas corpus, strike the one-year prior prison term enhancement, and direct the trial
court to prepare an amended abstract of judgment.
We vacate the trial court’s recall and resentencing order,2 treat this appeal as a
petition for writ of habeas corpus, in part, and grant the parties’ request to strike
defendant’s one-year prior prison term enhancement.
PROCEDURAL AND FACTUAL BACKGROUND3
The District Attorney of Tuolumne County filed an information on April 30, 2018,
charging defendant with second degree robbery (§ 211; counts I, II), assault with a
firearm (§ 245, subd. (a)(2); counts III, X, XI), assault with a deadly weapon (§ 245,
subd. (a)(1); count IV), assault by means likely to produce great bodily injury (§ 245,
subd. (a)(4); count V), conspiracy to commit a crime (§ 182, subd. (a)(1); count VI),
unlawful driving or taking of a vehicle with a prior conviction (Veh. Code, § 10851,
subd. (a); Pen. Code § 666.5; count VII), receiving stolen property (§ 496d, subd. (a);
count VIII), and first degree residential burglary (§ 459; count IX). The information also
alleged that defendant personally inflicted great bodily injury on an elderly person
2 The issues raised in defendant’s opening brief are moot in light of our conclusion.
3 We omit a more detailed description of the facts of this case because they are not relevant
to the issues raised on appeal.
3.
(§12022.7, subd. (c)) as to counts I, III, IV, V, VII, and IX; personally used a firearm
(§ 12022.5, subds. (a), (d)) as to counts I, II, III, IX, X, and XI; was a principal armed
with a firearm (§ 12022, subd. (a)(1)) as to counts IX, X, and XI; had a prior serious
felony conviction pursuant to the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12)
that also constituted a serious felony conviction (§ 667, subd. (a)(1)); and served two
prior prison terms (former § 667.5, subd. (b)).
On July 13, 2020, defendant pleaded guilty to counts I and II and admitted the
great bodily injury (§ 12022.7, subd. (a))4 and firearm (§ 12022.5, subd. (a))
enhancements as to count I in exchange for a stipulated 12-year term in state prison and
dismissal of the remaining charges. The 12-year sentence would become the primary
term and be served consecutively to defendant’s existing prison sentences. The
“Advisement and Waiver of Rights” (boldface & some capitalization omitted) form
executed by defendant also provides as follows: “Apprendi[5]-Blakely[6] Waiver: I hereby
give up the right to a jury or court trial as to any sentencing factors that may be used to
increase my sentence on any count, sentencing enhancement or allegation to the upper or
maximum term provided by law. I hereby give up the right to a jury or court trial on any
sentencing factors and consent to the judge determining the existence of any sentencing
factors with the judge’s discretion as allowed by existing statutes and rules of court.”
The trial court sentenced defendant on August 3, 2020, in accordance with the plea
agreement, and imposed a term of 11 years as to count I (a five-year upper term, plus
three years for each of the great bodily injury and firearm enhancements) and an
4 On that date, the court amended the information by changing the section 12022.7,
subdivision (c) enhancement to a section 12022.7, subdivision (a) enhancement.
5 Apprendi v. New Jersey (2000) 530 U.S. 466.
6 Blakely v. Washington (2004) 542 U.S. 296.
4.
additional year as to count II (one-third of the middle term), for a total term of 12 years.7
Defendant was also resentenced on his three existing convictions (comprised of a total of
four counts) to consecutive terms of one year four months per count (one-third of the
middle term doubled pursuant to § 667, subds. (b)–(j)), plus one year (former § 667.5,
subd. (b)), for a total term of six years four months, and an aggregate term as to all cases
of 18 years 4 months.
On July 1, 2024, defendant filed a “Motion to Correct Unauthorized Sentence
Under AB-600 Penal Code 1172.1.” Defendant argued that section 1170.1,
subdivision (g) precluded sentencing him to both the firearm and great bodily injury
enhancements, that he could not be sentenced to an upper term sentence without a jury
finding of aggravating factors,8 and that counsel was ineffective in failing to object to an
7 The August 18, 2020 abstract of judgment erroneously reflects that the firearm
enhancement is attached to count II. Having reviewed the record on appeal, we shall order the
abstract of judgment corrected. (See People v. Jones (2012) 54 Cal.4th 1, 89.)
8 “In 2007, the United States Supreme Court found [California’s] sentencing scheme
unconstitutional because ‘under the Sixth Amendment, any fact […] that exposes a defendant to
a greater sentence must be found by a jury, not a judge, and established beyond a reasonable
doubt, not merely by a preponderance of the evidence.’ (Cunningham [v. California (2007)]
549 U.S. [270,] 281; accord, Apprendi v. New Jersey[, supra,] 530 U.S. [at p.] 490.) The high
court indicated California could solve the constitutional conundrum by directly providing a jury
trial right with proof beyond a reasonable doubt for aggravating facts, or it could change its
sentencing structure to give trial courts broader discretion without the need for additional judicial
factfinding. (Cunningham, at pp. 293–294.) California chose the latter option. The Legislature
responded to Cunningham by no longer making the middle term the presumptive sentence and
instead conferring broad discretion on trial courts to select any term from among a sentencing
triad’s three options. (§ 1170, former subd. (b), enacted by Stats. 2007, ch. 3, § 2, pp. 6–7.)”
(People v. Mitchell (2026) 19 Cal.5th 729, 739, second bracketed insertion in original.)
When defendant was sentenced on August 3, 2020, section 1170, former subdivision (b)
provided: “When a judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest within the sound discretion of the
court.” (Stats. 2018, ch. 1001, § 1, eff. Jan. 1, 2019.) Section 1170, subdivision (b) was
amended by Senate Bill No. 567 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1) and currently
provides that when a statute specifies three possible terms, the court shall order imposition of a
sentence not to exceed the middle term, unless “there are circumstances in aggravation of the
crime that justify the imposition of a term of imprisonment exceeding the middle term and the
facts underlying those circumstances have been stipulated to by the defendant or have been
5.
unauthorized sentence. Upon receipt of defendant’s motion, the court set a hearing for
August 22, 2024. Defendant did not appear at the hearing, but the court reviewed the
allegations of defendant’s motion with the prosecutor. They also discussed a
November 29, 2023 letter notifying the court that the August 18, 2020 abstract of
judgment shows an enhancement attached to count II that was not one-third of the middle
term. The court observed that an amended abstract had not been prepared in response to
the letter and noted, “It does have a [former section 667.5 enhancement,] which should be
stricken.” The prosecutor agreed, “So that needs to be stricken.” In reviewing the
abstract of judgment, the court further noted that defendant had been sentenced to a full
term regarding the section 12022.5, subdivision (a) enhancement as to count II, which
should have been one year, but the prosecutor pointed out that it would be correct only if
the enhancement was properly attached to count II.
In reviewing the allegations of defendant’s motion, the court opined that it did not
agree that section 1170.1 precluded enhancements for both a firearm and great bodily
injury, that it was discretionary with the court and defendant was not entitled to it. The
court further indicated, “I mean it looks to me like the only argument he has is that—
because the gun enhancement was as to or the weapon enhancement was as to a
subordinate term. It should have been one[-]third the enhancement, and the [former
section ]667.5[, subdivision ](b) [enhancement] should be stricken.” The court then
continued the hearing and ordered defendant to be present.
Defendant appeared at the September 19, 2024 hearing and requested appointment
of counsel. The court appointed counsel and continued the hearing. At the following
hearing, the court explained, “So [defendant] filed a request to have his sentence
modified because he believes it’s an illegal sentence. I think [the judge] appointed
found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”
(§ 1170, subd. (b)(1), (2).)
6.
[defense counsel] to look into the issue.” Defense counsel stated that defendant had
grounds for resentencing “mainly because” there was a prison prior included on the
abstract of judgment and explained that defendant would be entitled to resentencing and
the ability to argue for a middle term sentence because he had not admitted any
aggravating factors. Defense counsel requested time to file a resentencing brief. The
court indicated that it would grant defendant a resentencing hearing and calendared it for
November 21, 2024.
Thereafter, counsel filed a petition for resentencing pursuant to section 1172.75
and requested the court strike the former section 667.5 enhancement and fully resentence
defendant. Defendant argued in his resentencing petition that he could not be sentenced
to an upper term sentence because he had not admitted any factors in aggravation and the
trial court should stay either the firearm or great bodily injury enhancement. The
prosecution agreed that defendant’s former section 667.5 enhancement should be stricken
but argued that he should otherwise be resentenced to the same aggregated term based
upon a certified copy of defendant’s criminal history, which demonstrated numerous prior
convictions.
At the resentencing hearing on November 21, 2024, defendant argued that he
should be sentenced to the middle term. The People argued that the aggravated term was
justified with reference to defendant’s certified record of prior convictions that were
numerous and of increasing seriousness. The trial court rejected defendant’s request for
resentencing: “I don’t see any reason to resentence. I think the People have proved the
aggravating factor of the justification for the aggravated sentence based on the certified
[record of prior convictions] and his history of criminal activity, the numerous nature of
those convictions and the increasing seriousness of those. I don’t see any reason to
resentence. [¶] … [¶] … The resentencing request is denied.”
The court ordered the abstract of judgment to be amended to eliminate the one-
year prior prison term enhancement and corrected to indicate that the section 12022.5,
7.
subdivision (a) enhancement was attached to count I and not count II. When defense
counsel stated that the trial court had denied resentencing, the court responded, “No. I
looked at the—I considered the briefs about resentencing, and I do not believe that the
resentencing requires or justifies changing the sentence other than what we’ve talked
about because I don’t believe that it’s in the interest of public safety to do so.” The trial
court also found that the aggravated sentence was justified by defendant’s criminal record
and declined to strike any other enhancement: “I don’t find that it’s in the interest of
justice or in the interest of public safety to do so.” Defense counsel clarified, “[Y]ou
stated you denied resentencing. So you didn’t—you actually resentenced him, but you’re
leaving the sentence the same.” The court agreed. Defendant received a sentence of
17 years 4 months.
Defendant filed a timely notice of appeal on December 18, 2024.
DISCUSSION
I. The trial court lacked jurisdiction to resentence defendant pursuant to
section 1172.75.
Section 1172.75, effective in 2022, provides 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); see Stats. 2021, ch. 728, § 3 [enacting former
§ 1171.1]; see also Stats. 2022, ch. 58, § 12 [renumbering former § 1171.1 to § 1172.75
without substantive change].)
The statute also establishes a process for recalling sentences that include now-
invalid prior prison term enhancements and resentencing affected defendants.
(§ 1172.75, subds. (b)–(e).) It requires the “Secretary of the [CDCR] and the county
correctional administrator of each county [to] identify those persons in their custody
currently serving a term for a judgment that includes an enhancement described in
8.
[section 1172.75,] subdivision (a) and [to] 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.” (Id., subd. (b).) Upon receiving this
information, “the court shall review the judgment and verify that the current judgment
includes a sentencing enhancement described in [section 1172.75,] subdivision (a).” (Id.,
subd. (c).) If the judgment includes such an enhancement, “the court shall recall the
sentence and resentence the defendant.” (Ibid.)
“[A]ny review and verification by the court in advance of resentencing is only
triggered by receipt of the necessary information from the CDCR Secretary or a county
correctional administrator, not by any individual defendant.” (People v. Burgess (2022)
86 Cal.App.5th 375, 384.) “[S]ection 1172.75 simply does not contemplate resentencing
relief initiated by any individual defendant’s petition or motion.” (Ibid.) While
defendant’s petition is not sufficient to authorize the trial court to act pursuant to
section 1172.75, jurisdiction can be found if the CDCR provided the court with a list
identifying defendant while his petition was pending. (See People v. Cota (2023)
97 Cal.App.5th 318, 332 [trial court is statutorily authorized to act once trial court
receives defendant’s identification information from CDCR]; People v. Escobedo (2023)
95 Cal.App.5th 440, 447–448; People v. Newell (2023) 93 Cal.App.5th 265, 268.)
In supplemental briefing, the parties acknowledge that the CDCR never identified
defendant to the trial court as someone eligible for section 1172.75 resentencing and the
trial court did not have jurisdiction to resentence defendant pursuant to section 1172.75.9
9 We also note that defendant was sentenced after January 1, 2020, although that sentence
included resentencing on his earlier convictions for which he was still serving prison sentences,
pursuant to former section 1171.1, subdivision (a). Under section 1170.1, a person convicted of
two or more felonies in different proceedings and sentenced to consecutive determinate terms is
entitled to have their sentence aggregated into a single term. That term is “the sum of the
principal term, the subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section 12022.1.” (§ 1170.1,
subd. (a); see also Cal. Rules of Court, rule 4.452(a).) Under these circumstances, the
defendant’s sentences are aggregated or “combined” (Cal. Rules of Court, rule 4.452(a)), and the
9.
Therefore, the trial court’s November 21, 2024 resentencing, the November 21, 2024
resentencing minute order, and the November 26, 2024 amended abstract of judgment
recalling defendant’s prior sentence and resentencing him pursuant to section 1172.75 are
void. (See People v. Chavez (2018) 4 Cal.5th 771, 780.) On appeal from a void
judgment or order, we must reverse the trial court’s void acts because simply dismissing
the appeal would leave intact the void judgment. (People v. Gray (2024)
101 Cal.App.5th 148, 170; People v. Alanis (2008) 158 Cal.App.4th 1467, 1477, fn. 5.)
II. Defendant may not appeal the trial court’s failure to act on his request for
resentencing pursuant to section 1172.1.
Defendant requests that we not take the “drastic action” of dismissing his appeal
for lack of jurisdiction and address his case as an appeal from resentencing pursuant to
section 1172.1. We conclude that the trial court never acted pursuant to defendant’s
section 1172.1 motion and, therefore, there is no jurisdiction for appeal on that basis.
Where, as here, execution of sentence has commenced and the judgment is final,
the trial court is generally “deprived of jurisdiction to resentence” a criminal defendant.
(People v. Karaman (1992) 4 Cal.4th 335, 344, citing Dix v. Superior Court (1991)
53 Cal.3d 442, 455; accord, People v. Hernandez (2019) 34 Cal.App.5th 323, 326.) To
obtain resentencing on a final judgment, a defendant generally must file a petition for
writ of habeas corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339) or proceed
by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2,
1172.6, 1172.7, 1172.75). (People v. Hernandez (2024) 103 Cal.App.5th 1111, 1118.)
Argued to be applicable here, a trial court may recall and resentence a defendant
“on its own motion, within 120 days of the date of commitment or at any time if the
applicable sentencing laws at the time of original sentencing are subsequently changed by
aggregated sentence must be expressed in the later judgment. In light of the CDCR’s failure to
identify defendant for section 1172.75 relief, we do not address the implications of defendant’s
sentencing date on his eligibility for section 1172.75 relief.
10.
new statutory authority or case law … provided the new sentence, if any, is no greater
than the initial sentence.” (§ 1172.1, subd. (a)(1).) Notably, the statute also provides: “A
defendant is not entitled to file a petition seeking relief from the court under this section.
If a defendant requests consideration for relief under this section, the court is not required
to respond.” (Id., subd. (c).)
A defendant may, however, invite the court to exercise its discretion under
section 1172.1. (See People v. Carmony (2004) 33 Cal.4th 367, 375.) However,
appellate courts have uniformly held that a trial court’s summary decision not to take up a
defendant’s invitation under section 1172.1 is not an appealable order and that any such
appeal fails to confer jurisdiction to the Court of Appeal. (People v. Brinson (2025)
112 Cal.App.5th 1040, 1047; People v. Roy (2025) 110 Cal.App.5th 991, 1001; People v.
Faustinos (2025) 109 Cal.App.5th 687, 695–696; People v. Hodge (2024)
107 Cal.App.5th 985, 996.)
Defendant argues that “by appointing counsel, accepting briefing and argument
from both parties, and resentencing [defendant] on November 21, 2024, the trial court
effectively exercised it[s] discretion under section 1172.1 and recalled [defendant]’s
sentence.” Two recent cases support defendant’s argument that when a court engages
with a defendant’s invitation to recall and resentence and the record reflects the court
considered the section 1172.1 invitation on its merits in denying it, the resulting order
may be appealable. (See People v. Olea (2025) 115 Cal.App.5th 889; People v. Craig
(2026) 117 Cal.App.5th 1165.) Neither Olea nor Craig affect our conclusion in this case.
In both cases, the procedural history is clear that the trial court was acting on the
petitioner’s section 1172.1 invitation. For example, in Olea, after counsel was appointed
to address Olea’s petition, counsel filed a pleading titled “Defense 1172.1 Invitation to
Recall Sentence” and detailed the trial court’s authority to resentence Olea pursuant to
section 1172.1. (Olea, at p. 895.) Similarly, the prosecution argued that recall and
resentencing was not justified pursuant to section 1172.1, and the trial court explicitly
11.
stated that it would not exercise its discretion to recall and resentence Olea. (Olea, at
pp. 895–896.) In Craig, the procedural history is also clear that the trial court acted in
response to Craig’s section 1172.1 petition, which was supplemented by defense
counsel’s arguments and opposed by the prosecution specifically as a section 1172.1
petition. (Craig, at pp. 1169–1170.)
Here, defendant filed a “Motion to Correct Unauthorized Sentence Under AB-600
Penal Code 1172.1,” and the trial court set a hearing in response to defendant’s filing.
However, at that hearing, the trial court reviewed defendant’s filing and concluded that
the issues raised were not meritorious. The court and prosecutor also discussed two
issues not raised in defendant’s filing: a CDCR letter that indicated either an error in
sentencing or a clerical error in the abstract of judgment related to sentencing on
count II10 and the existence of an invalid prior prison term enhancement. In reviewing
whether there had been a sentencing error, the court opined, “I mean it looks to me like
the only argument he has is that—because the gun enhancement was as to or the weapon
enhancement was as to a subordinate term. It should have been one[-]third the
enhancement, and the [former section ]667.5[, subdivision ](b) [enhancement] should be
stricken.” Neither issue was raised in defendant’s motion. The court then continued the
hearing and ordered defendant to be present.
At the hearing following appointment of counsel, the court explained that
defendant believed he had been sentenced illegally, and defense counsel had been
appointed to look into the issue. Defense counsel stated that he reviewed the issue and
defendant had grounds for resentencing “mainly because” there was a prison prior
10 There is no evidence in the record that the CDCR recommended recall or resentencing,
which might have provided a basis for jurisdiction pursuant to section 1172.1. (See People v.
Magana (2021) 63 Cal.App.5th 1120, 1124–1125 [where the problem with the sentencing was a
clerical one, CDCR’s letter requesting the trial court to determine whether a correction was
needed did not constitute a recommendation for recalling the sentence]; cf. People v. Singleton
(2025) 113 Cal.App.5th 783, 791 [concluding that similar language in CDCR’s letter to the trial
court did not confer jurisdiction to modify the sentence].)
12.
included on the abstract of judgment. The court indicated that it would grant defendant a
resentencing hearing and continued the hearing to allow counsel to brief the issues.
Defendant’s counsel then filed a resentencing petition pursuant to section 1172.75 and
requested the court strike the former section 667.5 enhancement and fully resentence
defendant. The prosecution agreed that defendant’s former section 667.5 enhancement
should be stricken pursuant to section 1172.75 but argued that he should otherwise be
resentenced to the same aggregated term based upon a certified copy of defendant’s
criminal history that demonstrated numerous prior convictions. The trial court then
struck the prior prison enhancement but declined to otherwise change defendant’s
sentence.
There is no indication that the trial court intended to grant defendant’s invitation to
recall and resentence him pursuant to section 1172.1, especially in light of its view of the
merits of defendant’s motion. Defense counsel then filed a petition pursuant to
section 1172.75, the prosecutor filed a written opposition to only defense counsel’s
section 1172.75 petition, and the court agreed with the prosecutor’s arguments that
defendant’s sentence should otherwise remain the same except for striking the prior
prison term enhancement. We conclude that the court acted pursuant to section 1172.75
in striking defendant’s prior prison term enhancement and otherwise leaving the original
sentence the same.
Because the trial court did not recall and resentence defendant based upon the
arguments he raised in his section 1172.1 motion and defense counsel and the prosecutor
agreed that defendant was entitled to resentencing pursuant to section 1172.75, we cannot
conclude that the trial court exercised its discretion pursuant to section 1172.1 when
recalling and resentencing defendant. Therefore, it appears that the trial court failed to
act on defendant’s section 1172.1 motion, and its decision is not appealable.
13.
III. We construe defendant’s appeal as a petition for writ of habeas corpus and grant
the parties’ request to strike the one-year prior prison term imposed pursuant to
former section 667.5, subdivision (b).
Nonetheless, both parties recognize that defendant’s prior prison term
enhancement was illegally imposed during his August 2020 sentencing because, at that
time, section 667.5 had been amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) to
limit prior prison term enhancements only to prior prison terms that were served for a
sexually violent offense as defined by Welfare and Institutions Code section 6600,
subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1, pp. 1–4, eff.
Jan. 1, 2020.) Both parties have requested that we treat defendant’s appeal as a petition
for writ of habeas corpus with respect to the sentence he is still serving, and we exercise
that discretion. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4.)
Accordingly, for the sake of judicial economy, we shall deem defendant’s appeal,
in part, a petition for writ of habeas corpus and order that the August 18, 2020 abstract of
judgment be modified to strike defendant’s former section 667.5 enhancement.
DISPOSITION
The trial court’s void order recalling and resentencing defendant pursuant to
section 1172.75 is reversed and vacated. The trial court is ordered to enter a new and
different order denying defendant’s section 1172.75 petition in its entirety. We direct the
trial court to vacate the November 21, 2024 sentence.
Further, this appeal is deemed, in part, a petition for writ of habeas corpus to strike
the one-year prior prison term enhancement imposed pursuant to former section 667.5,
subdivision (b). We grant the petition and order the enhancement stricken. The trial
court is directed to amend the August 18, 2020 abstract of judgment to remove the former
section 667.5, subdivision (b) enhancement in paragraph 3, attach the section 12022.5,
subdivision (a) enhancement to count I rather than count II in paragraph 2, check the box
in paragraph 4 that provides “per PC 667(b)-(i) or PC 1170.12 (strike prior),” and add “as
14.
to cases B, C, and D” following the checked box. The trial court shall forward the
amended abstract of judgment to the CDCR.
HILL, P. J.
WE CONCUR:
DESANTOS, J.
HARRELL, J.
15.