People v. Bruno CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCE353334
- Trial judge
- Lisa R. Rodriguez
- Outcome
- reversed — Reversed and remanded.
- Area
- criminal
- Panel
- Judith D. McConnell (author), O'Rourke, Buchanan
Analysis
The trial court denied Bruno's petition for resentencing under Penal Code section 1172.75, ruling he was ineligible because the original sentencing court had struck the punishment for his three prison priors rather than the enhancements themselves. The Court of Appeal reversed, holding that an enhancement remains 'imposed' for purposes of section 1172.75 if the punishment is stricken but the enhancement itself is not struck.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.75“We conclude section 1172.75 applies to prison priors that have been imposed but punishment stricken. We reverse the trial court’s order and remand for recall of Bruno’s sentence and for resentencing in compliance with section 1172.75 and current law.” | de novo | error | agree with court The appellate court correctly applied de novo review to a question of statutory construction. The interpretation that 'imposed' includes enhancements where punishment was stricken is supported by the distinction drawn in People v. Fuentes between striking an enhancement and striking its punishment, and aligns with the legislative intent to invalidate prior prison term enhancements broadly. |
Authorities
- relied: People v. Fuentes (2016) 1 Cal.5th 218 — Distinguishes between striking an enhancement (which removes it from the record) and striking the punishment for an enhancement (which leaves it on the record but prevents it from increasing the current sentence).
- relied: People v. Lewis (2021) 11 Cal.5th 952 — Establishes that questions of statutory construction are reviewed de novo.
- relied: People v. Christianson (2023) 97 Cal.App.5th 300 — Holds that the word 'imposed' in section 1172.75 is ambiguous and that the statute requires identification of inmates if the enhancement is included in the abstract of judgment, regardless of whether it is imposed or stayed.
- relied: People v. Flores (2021) 63 Cal.App.5th 368 — Clarifies that if a judge strikes only the punishment, the enhancement remains noted on the criminal record and could impact the defendant in a future case.
The appellate opinion: sound — The opinion is sound because it correctly identifies the legal issue as one of statutory construction and applies the appropriate standard of review. It relies on binding California Supreme Court authority (Fuentes) to distinguish between striking an enhancement and striking its punishment, which logically supports the conclusion that the enhancement remains 'imposed' when only the punishment is stricken.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Michael Bruno's Penal Code section 1172.75 petition to strike three section 667.5, subdivision (b) prison priors, finding him ineligible because the original sentencing court had imposed the enhancements but struck their punishment under section 1385, subdivision (b)(1). The Court of Appeal, reviewing the statutory question de novo, held that an enhancement whose punishment was stricken but which was not itself dismissed remains 'imposed' within the meaning of section 1172.75, reversed the order, and remanded for recall of sentence and full resentencing.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.75 resentencing petition on the ground that prison prior enhancements whose punishment was stricken were not 'imposed' and therefore not legally invalid under the statute“Unless the sentencing court strikes an enhancement altogether, it remains “imposed” for purposes of relief under section 1172.75 whether the punishment is stayed or stricken.” | de novo | error (statutory interpretation) | unsure The court's result is defensible and consistent with the weight of then-existing Court of Appeal authority (Christianson, Saldana, Renteria, Mayberry) holding that imposed-but-stayed prison priors qualify, and it correctly notes under Fuentes and Flores that striking punishment leaves the enhancement on the record with potential future consequences. But the opinion extends the stayed-enhancement reasoning to stricken-punishment enhancements in a single paragraph without addressing the distinction (a stayed term can later be executed; stricken punishment cannot), and it acknowledges but does not engage the contrary holding in Rhodius, which the Supreme Court had taken up for review. Because the question was unresolved and the opinion's analysis of the specific stricken-punishment scenario is thin, I cannot identify a specific legal error but also cannot say the reasoning fully supports the conclusion. |
Authorities
- relied: People v. Christianson (2023) 97 Cal.App.5th 300 — The word 'imposed' in section 1172.75 is ambiguous; CDCR must identify inmates whose abstract of judgment includes a prison prior enhancement regardless of whether it was executed or stayed, and such inmates are eligible for recall and resentencing.
- relied: People v. Fuentes (2016) 1 Cal.5th 218 — Under section 1385 a court may strike an enhancement entirely or, alternatively, strike only the additional punishment for the enhancement under subdivision (b)(1).
- relied: People v. Flores (2021) 63 Cal.App.5th 368 — A stricken enhancement disappears from the record, whereas when only the punishment is stricken the enhancement remains on the criminal record and may affect future sentencing.
- relied: People v. Lewis (2021) 11 Cal.5th 952 — Questions of statutory construction are reviewed de novo.
- relied: People v. Saldana (2023) 97 Cal.App.5th 1270 — Recall and resentencing under section 1172.75 is available when a prison prior enhancement was imposed and stayed.
- relied: People v. Renteria (2023) 96 Cal.App.5th 1276 — Section 1172.75 relief is available when a prison prior enhancement was imposed and stayed.
- relied: People v. Mayberry (2024) 102 Cal.App.5th 665 — Recall and resentencing under section 1172.75 is available when a prison prior enhancement was imposed and stayed.
The appellate opinion: sound with gaps — The opinion applies the correct de novo standard, accurately describes the section 1385 distinction between striking an enhancement and striking its punishment, and aligns itself with the majority appellate view that 'imposed' in section 1172.75 is not limited to executed enhancements. It reaches a defensible result but skips any real analysis of whether stricken punishment should be treated the same as a stayed term and does not engage the reasoning of the contrary Rhodius decision, which was pending before the Supreme Court along with Christianson.
Opinion
Filed 7/31/24 P. v. Bruno CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083230
Plaintiff and Respondent, (Super. Ct. No. SCE353334)
v.
MICHAEL THOMAS BRUNO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Reversed and remanded.
Richard Schwartzberg, 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 Minh U. Lee, Deputy Attorneys General for Plaintiff and Respondent. MEMORANDUM OPINION1 Michael Bruno appeals from a postjudgment order denying his Penal Code2 section 1172.75 resentencing petition to strike three prior prison term enhancements under section 667.5, subdivision (b) (prison prior) and be resentenced. The trial court denied his petition after determining relief under section 1172.75 was unavailable because, after imposing the three prison priors, the original sentencing court struck the punishment for these enhancements. We conclude section 1172.75 applies to prison priors that have been imposed but punishment stricken. We reverse the trial court’s order and remand for recall of Bruno’s sentence and for resentencing in compliance with section 1172.75 and current law. BACKGROUND In 2016, the court sentenced Bruno to 18 years in prison, consisting of the upper term of eight years for assault with a deadly weapon (§ 245, subd. (a)(1)) and imposed two five-year enhancements under section 667, subdivision (a)(1) for two prior serious felony convictions. It struck the punishment for three prison priors that Bruno admitted (§ 667.5, subd. (b)) and for the allegation that Bruno personally inflicted great bodily harm (§12022.7, subd. (a)). In 2023, the California Department of Corrections and Rehabilitation (CDCR) identified Bruno as a person who is serving a judgment that includes 1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851–854.)
2 Undesignated statutory references are to the Penal Code.
2 prison priors that might be invalid. The court appointed appellant counsel and ordered briefing on Bruno’s eligibility for resentencing under section 1172.75. In September 2023, following a hearing, the court denied the request for resentencing finding Bruno ineligible for relief because the original sentencing court struck the punishment for the three prison priors.
3 DISCUSSION Whether the trial court erred in denying Bruno’s section 1172.75 petition turns on the legal question whether a prison prior for which the punishment (but not the enhancement itself) was stricken under section 1385, subdivision (b)(1), was “imposed” within the meaning of section 1172.75. We review this question of statutory construction de novo. (People v. Lewis (2021) 11 Cal.5th 952, 961.) Under section 1385, subdivision (a), a trial court has the power to strike or dismiss a sentencing enhancement allegation. (People v. Fuentes (2016) 1 Cal.5th 218, 225 (Fuentes).) Instead of striking or dismissing an enhancement, “the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).” (§ 1385, subd. (b)(1); Fuentes, at p. 225.) If a judge strikes an enhancement, it effectively disappears; it won’t be part of the defendant’s criminal record or affect future sentencing. (People v. Flores (2021) 63 Cal.App.5th 368, 383.) However, if a judge strikes only the punishment, the enhancement remains noted on the criminal record but cannot be applied to increase the punishment in the current case but could impact defendant in a future case. (Ibid.; Fuentes at p. 225.) Effective January 1, 2022, Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill No. 483) retroactively invalidated prison priors previously imposed under section 667.5, former subdivision (b). (Stats. 2021, ch. 728, § 3; see former § 1171.1, now § 1172.75.3) Senate Bill No. 483 also provided a procedure for recall and resentencing of individuals whose prison priors have been rendered invalid by the bill. (Former § 1171.1.) That procedure is now 3 Section 1171.1 has been renumbered section 1172.75. (Stats. 2022, ch. 58, § 12.)
4 codified in section 1172.75. Section 1172.75, subdivision (a) 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 . . . is legally invalid.” (Italics added.) Section 1172.75, subdivision (b) requires the CDCR to identify all inmates “currently serving a term for a judgment that includes an enhancement described in subdivision (a).” (Italics added.) In People v. Christianson (2023) 97 Cal.App.5th 300, review granted Feb. 21, 2024, S283189 (Christianson), another panel of this court found the word “ ‘imposed’ ” was “somewhat ambiguous.” (Id. at p. 311.) It concluded the statute required the CDRC to identify an inmate under section 1172.75, subdivision (b) if the enhancement is “included in the abstract of judgment, regardless of whether [the enhancement] is imposed or stayed.” (Christianson, at p. 312.)4 It reasoned, “[h]ad the Legislature intended for the language in subdivision (b) to limit the identification to those inmates that would necessarily be required to serve an additional term based on the enhancement, it certainly could have done so.” (Ibid.)
4 Appellate courts are divided on whether section 1172.75 applies to an inmate whose sentence includes an otherwise-qualifying prison prior that was imposed and stayed, or whether it applies only when the inmate’s sentence includes a prison prior that was imposed and executed. (Compare People v. Mayberry (2024) 102 Cal.App.5th 665 [recall and resentencing is available when prison prior enhancement is imposed and stayed]; People v. Saldana (2023) 97 Cal.App.5th 1270 (Saldana), review granted Mar. 12, 2024, S283547 [same]; and People v. Renteria (2023) 96 Cal.App.5th 1276 [same], with People v. Rhodius (2023) 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169 [recall and resentencing is only available when prison prior enhancement is imposed and executed].)
5 This same reasoning applies here. Unless the sentencing court strikes an enhancement altogether, it remains “imposed” for purposes of relief under section 1172.75 whether the punishment is stayed or stricken. Accordingly, the trial court erred in denying Bruno’s petition for recall of sentence under section 1172.75. We therefore remand the matter for the trial court to recall Bruno’s sentence and resentence him. DISPOSITION The order denying Bruno’s request for resentencing is reversed. On remand, the trial court is directed to recall Bruno’s sentence and resentence him consistent with Penal Code section 1172.75 and current law.
McCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
BUCHANAN, J.
Cites, in this corpus
- People v. Lewis S260598 · 2021-07-26
- People v. Fuentes S219109 · 2016-07-21
- People v. Garcia F034831 · 2002-04-17