Filed 9/16/26 P. v. Probus CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083063
v. (Super.Ct.No. SWF003257)
JAMES RAMIREZ PROBUS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with instructions.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Brendon Marshall,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant James Ramirez Probus appeals from the order of the
Riverside County Superior Court denying his petition for resentencing made pursuant to
1
Penal Code section 1172.75.1 We will reverse and remand the matter for further
proceedings.
BACKGROUND
A. Defendant’s Sentence
In 2004, defendant was sentenced to a state prison term of life without the
possibility of parole after a jury convicted him of first degree murder (§ 187) and found
as a special circumstance that the murder was committed while defendant was engaged in
an attempted robbery (§§ 190.2, subd. (a)(17)(A), 664, 211). The court also imposed and
stayed (i) a five-year term for a strike prior (§ 667, subd. (a)), and (ii) a one-year sentence
for a prior prison term enhancement related to a conviction for the manufacture of
controlled substances under subdivision (b) of section 667.5.2
B. The Developments Concerning the Elimination of Prior Prison Enhancements Other
Than Those Involving Certain Sexually Violent Crimes
In 2019, the Legislature amended subdivision (b) of section 667.5 (amended
§ 667.5(b)) to eliminate prior prison term enhancements unless the prior prison term was
for specific sexually violent offenses. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) The
amendment was retroactive to any case in which the judgment was not final. (People v.
1 All further statutory references are to the Penal Code.
2 We note the abstract of judgment does not mention the five-year strike and
incorrectly states defendant has two prison priors.
2
Lopez (2019) 42 Cal.App.5th 337, 340-342.) In 2022, section 1172.75 became effective.3
(Stats. 2021, ch. 728, § 3, eff. Jan. 1, 2022.) Subdivision (a) of that provision declares
legally invalid any prison prior sentence enhancement defined in amended section
667.5(b) that was imposed prior to January 1, 2020 (often referred to herein as a
qualifying enhancement). (§ 1172.75, subd. (a) (§ 1172.75(a)).)
In relevant part, section 1172.75 requires the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) to identify persons in their
custody currently serving a term for a judgment that includes a qualifying enhancement
and to provide the name of those persons and other specified identifying information to
the sentencing court. (§ 1172.75, subd. (b).)
Upon receiving names from CDCR, the sentencing court must review each
person’s current judgment to confirm that it includes a qualifying enhancement and, if it
does, it must recall the sentence and resentence the defendant. (§ 1172.75, subd. (c)
(§ 1172.75(c)).)
3 At the time of its enactment in January 2021, section 1172.75 was numbered
section 1171.1, but was renumbered effective June 30, 2022, with no substantive changes
to the statute (Stats. 2022, ch. 58, § 12).
3
C. The Defendant’s Eligibility for Section 1172.75 Relief
Defendant was included on a CDCR list of persons sentenced in Riverside County
thought to be eligible for resentencing relief because a qualifying prison prior was listed
on his abstract of judgment.4
The issue of defendant’s eligibility for section 1172.75 relief was heard the same
afternoon the court was deciding the eligibility issue in the cases of several other
defendants. Defendant’s hearing was not reported.
The trial court found defendant ineligible for resentencing and incorporated by
reference a case it had heard earlier that day when a court reporter was present, Riverside
Superior Court case No. BAF002073, People v. Chlad.5 In Chlad, the trial court, relying
on this court’s decision in People v. Rhodius (2023) 97 Cal.App.5th 38, 45 (Rhodius I),
revd. (2025) 17 Cal.5th 1050, 1068 (Rhodius II), found Chlad ineligible for recall and
resentencing under section 1172.75 because his prison priors had been stayed and,
therefore, he was not serving any additional time for those enhancements.
Defendant noticed this appeal from the trial court’s finding of ineligibility for
section 1172.5 resentencing relief and, in our initial opinion, we affirmed the trial court’s
4 On our own motion, we take judicial notice of the declarations of Aimee Vierra
and David McKinney, filed in case No. E082642, and augment the record in this case to
include the CDCR list attached to those declarations. That list, dated June 16, 2022, sets
forth the names of persons eligible for relief under section 1172.75 in active cases for
Riverside County. Defendant’s name appears on page 169 of that document.
5 The case the trial court referred to (Riverside Super. Ct. case No. BAF002073)
was appealed to this court. (People v. Chlad (Oct. 23, 2024, E083222) [nonpub. opn.]
(Chlad).) We have taken judicial notice on our own motion of the reporter’s transcript of
the December 21, 2023, section 1172.75 hearing in Chlad.
4
decision. Thereafter, our Supreme Court issued its opinion in Rhodius II, which held
section 1172.75 applies to enhancements imposed as part of a defendant’s original
judgment, regardless of whether the enhancement was executed or instead stayed.
(Rhodius II, supra, 17 Cal.5th at p. 1068.) As Rhodius II explains, if the enhancement is
no longer authorized under amended section 667.5(b), then it is invalid under section
1172.75(a) even if it was stayed and, therefore, the defendant is entitled to resentencing in
accordance with the procedures set forth in section 1172.75. (Rhodius II, at p. 1068.)
Upon defendant’s showing of good cause, we recalled the remittitur issued in this
case, vacated our opinion, and solicited supplemental briefing from the parties on the
issue of Rhodius II’s application in this case.
DISCUSSION
In his supplemental brief, defendant cites Rhodius II and argues we should reverse
the trial court’s finding that he is ineligible for resentencing and remand this case for a
section 1172.5 hearing. The People concede that remand for resentencing in accordance
with section 1172.5 is warranted under Rhodius II. We agree. Rhodius II has made clear
that in a case like the present one in which a qualifying prison prior was imposed and
stayed, the defendant is entitled to a section 1172.75 resentencing hearing. (Rhodius II,
supra, 17 Cal.5th at p. 1068.)
DISPOSITION
The trial court’s finding that defendant is not eligible for resentencing under
section 1172.75 is reversed and the matter is remanded with instructions (i) to recall
defendant’s sentence and to hold a section 1172.75 resentencing hearing, and (ii) to
5
correct the abstract of judgment to add section 667, subdivision (a), which the trial court
stayed, and to eliminate the references to section 667.5, subdivision (b).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
6