People v. Probus CA4/2

Opinion

Filed 9/16/26 P. v. Probus CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.