by Sam Rutherford

The California Court of Appeal, Fourth Appellate, held that a defendant’s prison prior enhancement based on an offense that may no longer serve as a predicate for the sentence enhancement under Senate Bill No. 483 (2021–2022 Reg. Sess.) may not be affirmed based on the existence of another valid predicate offense that was not alleged in the original information or admitted to by the defendant during the original sentencing proceeding. The Court further held that the defendant was entitled to a full resentencing hearing based on current law.

Background

In 1998, Denail Shane Green was charged in San Diego County Superior Court with one count of possessing cocaine base with intent to sell. The information also alleged two sentence enhancements—(1) a prison prior enhancement under Cal. Pen. Code § 667.5 for a 1990 robbery conviction and (2) a third strike enhancement under § 667 for the 1990 robbery conviction and a concurrently sentenced 1990 conviction for committing a lewd act on a child.

A jury convicted Green of the lesser included offense of possessing cocaine, and at a subsequent bifurcated bench trial, he admitted to serving a prison sentence on the 1990 robbery charge and to the existence of two prior strikes for the robbery and lewd act convictions. The trial court imposed a 25-year-to-life sentence for the third strike conviction under § 667(e)(2), plus a consecutive one-year sentence for the prison prior under § 667.5(b), for a total sentence of 26 years to life.

Effective January 1, 2022, Senate Bill 483 created what is now § 1172.75 to the Penal Code. See Cal. Stats. 2021, ch. 728, § 3. The statute retroactively invalidates prison prior enhancements imposed pursuant to § 667.5(b), except those that were based on a prior conviction for a sexually violent offense. See § 1172.75(a). The statute also provides that trial courts must “recall the sentence and resentence the defendant” if he is serving time for a now invalid prison prior enhancement. § 1172.75(c).

Following the enactment of Senate Bill 483, the Department of Corrections and Rehabilitation notified Green that he was possibly serving an invalid prison prior enhancement. Through appointed counsel, Green submitted a resentencing petition pursuant to § 1172.75(a), arguing that his 1990 robbery conviction no longer qualified him for the enhancement. Green also argued that he was entitled to a full resentencing hearing under § 1172.75(c), at which the amended version of California’s Three strikes law would apply, meaning he may no longer qualify for a third strike enhancement.

The trial court rejected the request, reasoning that because Green served concurrent prison sentences for both the robbery and lewd act convictions and because the lewd act conviction still qualifies as a prison prior under § 1172.75, as amended by Senate Bill 483, his 1998 sentence was not illegal.

Green timely appealed.

Analysis

The Court reviewed two issues on appeal: (1) whether § 1172.5, as amended by Senate Bill 483, rendered Green’s prison prior enhancement based on his 1990 robbery conviction invalid, and if so, (2) whether he was entitled to a plenary resentencing hearing at which amended, retroactive sentencing laws apply.

When Green was sentenced in 1998, California law required the trial court to “impose a one-year term for each prior separate prison term served for any felony” when the prior prison term was “charged and admitted or found true in the action for the new offense.” Former § 667.5(b), (d) (1997). This statute required the People to prove “that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.” People v. Tenner, 862 P.2d 840 (Cal. 1993).

However, in 2019, the Legislature amended § 667.5(b) to impose a one-year enhancement only for a prison term served for conviction of a sexually violent offense, rather than for any felony. Cal. Stats. 2019, ch. 590, § 1 (Eff. Jan. 1, 2020). Senate Bill 483 made this amendment retroactive. Cal. Stats. 2021, ch. 728, § 3 (Eff. Jan. 1, 2022). Therefore, as the Court explained, California law now “invalidates ‘[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.’” Quoting § 1172.75, subd. (a).

The Court further explained that whether Green’s prison prior enhancement remained valid turned on the type of prior conviction for which it was “imposed.” It was “undisputed” that Green’s enhancement was imposed based solely on his 1990 robbery conviction, which was alleged in the charging information and admitted to by him at sentencing. The People “did not plead or seek to impose” the prison prior enhancement based on Green’s 1990 lewd conduct conviction, and instead only relied on it “for the purposes of the ‘Three Strikes’ law.” Thus, the Court ruled that Green’s prison prior enhancement was invalid under § 1172.75(a).

The Court concluded that Green was also entitled to a plenary resentencing hearing. Whenever a sentence enhancement is invalidated under § 1172.75(a), “the court shall recall the sentence and resentence the defendant” to “eliminate the repealed enhancement” and “apply any other changes in law that reduce sentences or provide for judicial discretion.” § 1172.75(c), (d)(1)-(2). This requires a “full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.” People v. Garcia, 101 Cal. App. 5th 848 (2024).

The Court declined to address the People’s argument that the trial court could still impose a 25-year-to-life sentence on remand under the current version of California’s Three Strikes law because Green’s prior lewd conduct conviction counts as a “super strike.” Instead, it instructed the trial court to resolve this issue in the first instance.

Conclusion

Accordingly, the Court overturned the trial court order denying Green’s resentencing request and remanded the case for a full resentencing hearing. See: People v. Green, 104 Cal. App. 5th 365 (2024).

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