Filed 6/17/26 P. v. Orozco CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B344928
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA089787)
v.
HECTOR OROZCO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Pat Connolly, Judge. Dismissed.
Teresa Biagini, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, Christopher G. Sanchez and Charles
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
In March 2007 Hector Orozco, armed with a gun, told a
man and his girlfriend to give him their car. The couple got out
of the car, and Orozco drove away in it. The woman alerted the
police, and after a high-speed chase, the police arrested Orozco.
(People v. Orozco (Jan. 13, 2020, B298585) [nonpub. opn.]
(Orozco II).)
In September 2007 a jury convicted Orozco of carjacking
(Pen. Code, § 215, subd. (a))1 and found true the allegation he
personally used a firearm in committing the offense (§ 12022.53,
subd. (b)). The jury also convicted Orozco of evading a peace
officer with wanton disregard for public safety (Veh. Code,
§ 2800.2, subd. (a)) and possessing a firearm as a felon (former
§ 12021, subd. (a)(1), now § 29800, subd. (a)(1)). In a bifurcated
proceeding Orozco admitted he had a prior conviction for a felony
that was a serious or violent felony, within the meaning of the
three strikes law (§§ 667, subds. (b)-(j), 1170.12), and a serious
felony, within the meaning of section 667, subdivision (a)(1). He
also admitted he had served six prior prison terms, within the
meaning of section 667.5, former subdivision (b). (Orozco II,
supra, B298585.)
The court sentenced Orozco to an aggregate prison term of
34 years four months. On his conviction for carjacking, the trial
court sentenced Orozco to the upper term of nine years, doubled
under the three strikes law, plus 10 years for the firearm
enhancement and five years for the prior serious felony
enhancement. On his conviction for evading a peace officer with
wanton disregard for public safety, the court sentenced Orozco to
a consecutive term of one year four months (one-third the middle
1 Undesignated statutory references are to the Penal Code.
2
term of two years, doubled). And on his conviction for possessing
a firearm as a felon, the court sentenced Orozco to a concurrent
term of one year four months (same). The court did not impose
any one-year enhancements under section 667.5, former
subdivision (b), and the judgment does not include them. Orozco
appealed, and after correcting a sentencing error on one of the
concurrent terms, we affirmed. (People v. Orozco (Mar. 3, 2010,
B207039) [nonpub. opn.] (Orozco I).)
In April 2019 Orozco moved for resentencing under Senate
Bill No. 1393, which as of January 1, 2019 “amended section 667,
subdivision (a), and section 1385, subdivision (b), to give the trial
court discretion to dismiss a five-year enhancement for a prior
serious felony conviction.” (People v. Craig (2026)
117 Cal.App.5th 1165, 1169.) The superior court denied the
motion, and we affirmed. (Orozco II, supra, B298585.)
In 2021 the Legislature declared legally invalid prior prison
term enhancements imposed under section 667.5, former
subdivision (b), before January 1, 2020, except those arising from
convictions for sexually violent offenses. The Legislature enacted
section 1172.75, “which provided a procedure for resentencing
inmates serving terms that included the now-invalid
enhancements.” (People v. Grajeda (2025) 111 Cal.App.5th 829,
834; see § 1172.75, subd. (a).)
In October 2023 Orozco filed a motion for resentencing
under sections 1172.75 and 1385. Orozco argued in a brief filed
by counsel in support of his motion under section 1172.75 that
enhancements under section 667.5, former subdivision (b), that
were imposed but stayed “require a full resentencing hearing”
and that the “priors were not stricken as part of the sentence, nor
were they imposed.”
3
In February 2025 the superior court resentenced Orozco
under section 1172.75. The court recognized that, though Orozco
admitted the allegations he had served six prior prison terms
within the meaning of section 667.5, former subdivision (b), the
trial court did not impose any sentence on those enhancements.
Nevertheless, the superior court stated it had the ability to
resentence Orozco under section 1172.75. The court struck the
six prior prison term enhancements (even though the trial court
had not imposed them) and the five-year enhancement for the
serious felony conviction under section 667, subdivision (a). As a
result, the superior court reduced Orozco’s sentence by five years,
from 34 years four months to 29 years four months. Orozco was
not present at the hearing.
Orozco appealed. He argues the superior court erred in
failing to obtain a valid waiver of his right to be present at his
resentencing hearing under section 1172.75. He also argues,
among other things, the superior court abused its discretion in
declining to dismiss the firearm enhancement and in not
imposing the lower term on Orozco’s carjacking conviction.
The superior court, however, did not have jurisdiction to
rule on Orozco’s motion for resentencing. Section 1172.75 does
not authorize the defendant to file the motion Orozco filed. Only
the Department of Corrections and Rehabilitation can initiate the
resentencing process under section 1172.75. (§ 1172.75, subd. (b);
People v. Escobedo (2023) 95 Cal.App.5th 440, 447; People v.
Newell (2023) 93 Cal.App.5th 265, 268; People v. Burgess (2022)
86 Cal.App.5th 375, 384.) There is no evidence the Department
ever filed such a motion regarding Orozco, and Orozco concedes
he was not “identified as someone currently serving a prison term
that includes a Penal Code Section 667.5(b) enhancement.”
4
Which is perhaps because the trial court did not “impose[ ]”
an enhancement (§ 1172.75, subd. (a)), and Orozco is not
“currently serving a term for a judgment that includes an
enhancement” (id., subd. (b)), under section 667.5, former
subdivision (b). True, “section 1172.75 entitles a defendant to
resentencing if the underlying judgment includes a prior-prison-
term enhancement that was imposed before January 1, 2020,
regardless of whether the enhancement was then executed or
instead stayed.” (People v. Rhodius (2025) 17 Cal.5th 1050,
1054.) But the trial court here neither imposed and executed an
enhancement under section 667.5, former subdivision (b), nor
imposed and stayed execution of such an enhancement. The trial
court didn’t mention the one-year enhancements at the
sentencing hearing, and the abstract of judgment does not
include any such enhancement. (See Rhodius, at p. 1058 [“an
enhancement is ‘imposed’ when it is made part of a legally
effective order”].) And neither Orozco nor the People suggest the
trial court struck the enhancements under section 667.5, former
subdivision (b).2
2 There is a split of authority on whether a defendant is
entitled to resentencing under section 1172.75 when the trial
court strikes an enhancement under section 667.5, former
subdivision (b). (Compare People v. Cota (2025) 112 Cal.App.5th
1118, 1132 [“section 1172.75 requires resentencing where . . .
prison priors were imposed but punishment for them was
struck”], review granted Oct. 1, 2025, S292637 and People v.
Espino (2024) 104 Cal.App.5th 188, 193 [“section 1172.75 should
be interpreted to apply whenever a prison prior was imposed,
whether punishment was executed, stayed, or struck”], review
granted Oct. 23, 2024, S286987 with People v. Tang (2025)
109 Cal.App.5th 1003, 1005 [“a stricken enhancement is not an
5
Orozco argues his “sentence was ‘imposed’ within the
meaning of section 1172.75 because the original sentencing
court’s failure to sentence on the section 667.5(b) enhancements
resulted in an unauthorized sentence that the resentencing court
appropriately corrected.” Orozco, however, did not argue in his
motion the trial court erred in not imposing the six one-year
enhancements under section 667.5, former subdivision (b), or ask
the superior court to impose them. And even if he had, the
superior court lacked jurisdiction to modify Orozco’s sentence
under section 1172.75 because it lacked jurisdiction under
section 1172.75 to do anything. (See In re G.C. (2020) 8 Cal.5th
1119, 1130 [to invoke the rule an authorized sentence may be
corrected at any time, “the court must have jurisdiction over the
judgment”]; People v. Hernandez (2024) 103 Cal.App.5th 1111,
1123 [courts do not “have jurisdiction to correct an unauthorized
sentence outside of a habeas corpus petition or some other
posture where they independently have jurisdiction to do so”];
People v. Boyd (2024) 103 Cal.App.5th 56, 68 [“We are unaware of
any controlling authority holding that trial courts possess
inherent jurisdiction to correct unauthorized sentences where
cases are final. To the contrary, the availability of habeas corpus
relief to correct unauthorized sentences suggests that trial courts
do not have inherent jurisdiction to correct such sentences, as
habeas corpus relief would be superfluous if a freestanding trial
imposed enhancement within the meaning of section 1172.75,
subdivision (a)”] and Espino, at p. 202 [“the requirement of an
‘imposed’ sentence enhancement [is not] satisfied where the
enhancing punishment was stricken”] (dis. opn. of Lie, J.).) The
Supreme Court recognized the issue in Rhodius but did not reach
it. (See People v. Rhodius, supra, 17 Cal.5th at p. 1066, fn. 2.)
We likewise do not reach it.
6
court motion could at any time achieve the same result without
the procedural limitations that habeas corpus law imposes.”];
People v. Cabrera (2018) 21 Cal.App.5th 470, 477 [“An
unauthorized sentence may be corrected at any time by a court
with jurisdiction.” (italics added)]; see also People v. Singleton
(2025) 113 Cal.App.5th 783, 796-797 [following Boyd].)
Finally, because the superior lacked jurisdiction to rule on
Orozco’s motion for resentencing, we lack jurisdiction over his
appeal from the order on that motion. (See People v. Newell,
supra, 93 Cal.App.5th at pp. 268-269; People v. Burgess, supra,
86 Cal.App.5th at p. 382.) Therefore, we must dismiss the
appeal.
DISPOSITION
The People’s request for judicial notice is denied. The
appeal is dismissed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
STONE, J.
7