Filed 9/12/24 P. v. Divincenzo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082704 Plaintiff and Respondent, (Super.Ct,No. FVI05479) v. The County of San Bernardino

DARRIN MATTHEW DIVINCENZO,

Defendant and Appellant. ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT] _______________________________________

THE COURT

The opinion filed in this matter on September 10, 2024 is hereby modified.

On page 8 before the last paragraph which begins with “We therefore conclude”,

insert the following paragraph:

For the first time at oral argument, the People contended that because stayed prior

prison term enhancements like Divincenzo’s are now legally invalid, they no longer carry

any threat of execution in the future, so Christianson and similar cases were wrong to

conclude that the striking of such an enhancement results in a “lesser” sentence within the

1 meaning of section 1172.75, subdivision (d)(1). We are not persuaded. The statute

requires that resentencing “result in a lesser sentence than the one originally imposed.”

(§ 1172.75, subd. (d)(1), italics added.) When it was originally imposed, the

enhancement carried the threat of future execution, so striking the enhancement results in

a lesser sentence than the one originally imposed. In addition, we note that subdivision

(c) of section 1172.75 requires the trial court to recall the sentence and resentence the

defendant if “the court determines that the current judgment includes an enhancement

described in subdivision (a),” i.e., an enhancement under subdivision (b) of section 667.5

that was not imposed for a sexually violent offense. Divincenzo’s judgment does include

such an enhancement (even though it was stayed), so the statute requires that he be

resentenced.

Except for this modification, the opinion remains unchanged. This modification

does not affect the judgment.

MENETREZ

J. We concur:

CODRINGTON

Acting P. J.

FIELDS

J.

2 Filed 9/10/24 P. v. Divincenzo CA4/2 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, E082704

v. (Super.Ct.No. FVI05479)

DARRIN MATTHEW DIVINCENZO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael Dauber,

Judge. Reversed with directions.

Anna M. Jauregui-Law, 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, Collette C. Cavalier and Nora

S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

1 Darrin Divincenzo appeals from the trial court’s order denying his request for

resentencing under Penal Code section 1172.75 after the Department of Corrections and

Rehabilitation (CDCR) identified him as a person serving time on a judgment that

includes a now-invalid prior prison term enhancement. (Unlabeled statutory citations

refer to the Penal Code.) The trial court struck Divincenzo’s enhancement as invalid but

declined to recall his sentence and conduct a full resentencing under section 1172.75,

subdivision (d), on the ground that the enhancement was stayed when it was imposed.

On appeal, Divincenzo contends that section 1172.75’s resentencing procedure

applies to any defendant who is serving prison or jail time on a judgment that includes a

now-invalid prior prison term enhancement, regardless of whether the enhancement was

originally stayed or executed. We agree. We therefore reverse the order and remand for

the trial court to recall Divincenzo’s sentence and resentence him under section 1172.75,

subdivision (d).

BACKGROUND

In 2000, Divincenzo pled guilty to one count of first degree residential burglary.

(§ 459). He admitted that he had two prior strike convictions (§§ 667, subds. (b)-(i),

1170.12, subd. (a)) and two prior serious felony convictions (§ 667, subd. (a)). He also

admitted that he had served a prior term in prison. (Former § 667.5, subd. (b).) At

sentencing, the trial court struck the prior serious felony enhancements, imposed but

stayed the one-year term for the prior prison term enhancement, and imposed a sentence

of 25 years to life under the Three Strikes law for the burglary count.

2 When Divincenzo was sentenced, section 667.5, subdivision (b), required trial

courts to impose a one-year enhancement for each true finding on an allegation that the

defendant had served a separate prior prison term and had not remained free of custody

for at least five years. (Former § 667.5, subd. (b).) However, as of January 1, 2020,

Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b), to

eliminate sentence enhancements for prior prison terms unless the prior terms were for

sexually violent offenses. (Stats. 2019, ch. 590, § 1; People v. Coddington (2023) 96

Cal.App.5th 562, 567.) Two years later, Senate Bill No. 483 (2021-2022 Reg. Sess.)

added section 1172.75 (formerly § 1171.1) to provide a resentencing procedure that

extends the prohibition on prior prison term enhancements to all persons currently

incarcerated in jail or prison. (Stats. 2021, ch. 728, § 3.) The resentencing procedure, set

forth in section 1172.75, subdivision (d), requires the trial court to impose “a lesser

sentence than the one originally imposed” (unless doing so would endanger public safety)

and to apply “any other changes in law that reduce sentences,” among other

requirements. (§ 1172.75, subd. (d)(2).)

In May 2023, CDCR notified the trial court that Divincenzo was potentially

eligible for resentencing under section 1172.75 because he was serving a term for a

judgment that included a now-invalid prior prison term enhancement. In August 2023,

Divincenzo filed a motion asking the court to strike his prior prison term enhancement,

recall his sentence, and resentence him under section 1172.75, subdivision (d). The

3 People filed an opposition, arguing that section 1172.75 does not apply to Divincenzo,

because his enhancement had been stayed, not executed.

The trial court struck the enhancement, concluding that the prior prison term

enhancement is now invalid under section 1172.75. However, the court declined to recall

Divincenzo’s sentence and resentence him. The court concluded that because the

enhancement was stayed and not executed, Divincenzo was ineligible for resentencing

under section 1172.75.

DISCUSSION

Divincenzo argues that the trial court correctly concluded that his prior prison term

enhancement is now invalid under section 1172.75 but incorrectly concluded that he is

ineligible for resentencing under the statute. The People contend that section 1172.75

applies only to imposed and executed prior prison term enhancements and therefore does

not apply to Divincenzo’s imposed and stayed enhancement. We agree with Divincenzo.

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.” Section 1172.75, subdivision (b), requires the Secretary of CDCR

and the administrators for each county jail to “identify those persons in their custody

currently serving a term for a judgment that includes an enhancement described in

subdivision (a)” and to provide certain information about those individuals “to the

sentencing court that imposed the enhancement.” Upon receiving that information, the

4 court “shall recall the sentence and resentence the defendant” if the court “determines

that the current judgment includes an enhancement described in subdivision (a).”

(§ 1172.75, subd. (c).)

Section 1172.75, subdivision (d), describes the resentencing procedure. The

resentencing “shall result in a lesser sentence than the one originally imposed as a result

of the elimination of the repealed enhancement, unless the court finds by clear and

convincing evidence that imposing a lesser sentence would endanger public safety.”

(§ 1172.75, subd. (d)(1).) In resentencing, “[t]he court shall apply the sentencing rules of

the Judicial Council and apply any other changes in law that reduce sentences or provide

for judicial discretion.” (§ 1172.75, subd. (d)(2).) “The court may consider

postconviction factors, including, but not limited to, the disciplinary record and record of

rehabilitation of the defendant while incarcerated, evidence that reflects whether age,

time served, and diminished physical condition, if any, have reduced the defendant’s risk

for future violence, and evidence that reflects that circumstances have changed since the

original sentencing so that continued incarceration is no longer in the interest of justice.”

(§ 1172.75, subd. (d)(3).) “Unless the court originally imposed the upper term, the court

may not impose a sentence exceeding the middle term unless there are circumstances in

aggravation that justify the imposition of a term of imprisonment exceeding the middle

term, and those facts have been stipulated to by the defendant, or have been found true

beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”

(§ 1172.75, subd. (d)(4).)

5 The parties’ dispute concerns the meaning of the word “imposed” in section

1172.75, subdivision (a). Our appellate courts are currently split on the issue. In People

v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169

(Rhodius), our court held that “imposed” must be interpreted as shorthand for “imposed

and executed” in order to make sense of the requirement in section 1172.75, subdivision

(d)(1), that resentencing must result in “a lesser sentence than the one originally imposed

as a result of the elimination of the repealed enhancement.” (Rhodius, at pp. 43-45.)

Reasoning that “[t]he only way for the repealed enhancement to have increased the length

of a sentence is for the enhancement to have been imposed and executed,” Rhodius

concluded that if section 1172.75 applied to stayed prior prison term enhancements, then

a resentencing court faced with such an enhancement would be forced to “arbitrarily

lower” the defendant’s sentence to comply with the “lesser sentence” requirement.

(Rhodius, at p. 44.) To avoid that outcome, Rhodius held that section 1172.75 must be

construed to apply only to prior prison term enhancements that were imposed and

executed. (Rhodius, at p. 44.)

The rest of the appellate decisions to consider this issue have concluded that

section 1172.75 applies regardless of whether the imposed prior prison term enhancement

was executed or stayed. (People v. Renteria (2023) 96 Cal.App.5th 1276; People v.

Christianson (2023) 97 Cal.App.5th 300, rev. granted Feb. 21, 2024, S283189

(Christianson); People v. Saldana (2023) 97 Cal.App.5th 1270, rev. granted Mar. 12,

2024, S283547 (Saldana); People v. Mayberry (2024) 102 Cal.App.5th 665 (Mayberry).)

6 Christianson, Saldana, and Mayberry reasoned that Rhodius’s concern about applying

section 1172.75 to stayed enhancements was unfounded, because striking a stayed

enhancement does result in a “lesser” sentence within the meaning of section 1172.75,

subdivision (d)(1). As Christianson explained, a stayed enhancement carries “the

potential for an increased sentence,” because “the trial court retains the ability to lift the

stay and impose the term under certain circumstance[s], such as if an alternately imposed

term is invalidated.” (Christianson, at p. 312.) Striking a stayed enhancement reduces

the defendant’s sentence because it eliminates the risk that the enhancement will be

executed in the future. (Ibid.; see also Saldana, at p. 1277; Mayberry, at pp. 674-675

[“Imposed-but-stayed prior prison term enhancements carry the possibility of execution,”

and striking them “eliminates their impact”].) Resentencing courts thus would not be

required to arbitrarily lower a sentence that included a stayed prior prison term

enhancement, because striking the enhancement is sufficient to satisfy the “lesser

sentence” mandate of section 1172.75, subdivision (d)(1). (Christianson, at p. 312;

Saldana, at p. 1277; Mayberry, at p. 673.)

Our Supreme Court has granted review to resolve the split. (Rhodius, supra, 97

Cal.App.5th 38, rev. granted.) Pending guidance from the Supreme Court, we agree with

the decisions holding that section 1172.75 applies to an imposed prior prison term

enhancement regardless of whether the punishment was executed or stayed. (E.g.,

Christianson, supra, 97 Cal.App.5th at p. 315, rev. granted; Saldana, supra, 97

Cal.App.5th 1270, rev. granted.) We also agree with Christianson, Saldana, and

7 Mayberry that striking a stayed enhancement results in a lesser sentence because it

eliminates the risk that the enhancement will be executed in the future. (Christianson, at

p. 312; Saldana, at p. 1277; Mayberry, supra, 102 Cal.App.5th at p. 673.)

The People argue that there is no such risk in this case, because Divincenzo’s

sentence has already been affirmed on direct appeal. We disagree. When the term for an

enhancement is stayed, the stay does not become permanent until “the defendant finishes

serving the part of the sentence that has not been stayed.” (Cal. Rules of Court, rule

4.447(a)(2).) Contrary to the People’s argument, direct appeal is not the only

circumstance in which an alternately imposed term can be invalidated. For example, and

as section 1172.75 itself demonstrates, the Legislature sometimes enacts retroactive

changes to sentencing laws. (See Saldana, supra, 97 Cal.App.5th at p. 1278, rev. granted

[noting that “a stayed term or enhancement . . . is part of the sentence and remains

available if its execution becomes necessary and proper for any legally sanctioned

reason”].) Because Divincenzo is still serving the sentence imposed for his burglary

conviction, his prior prison term enhancement still “carr[ies] the possibility of

execution.” (Mayberry, supra, 102 Cal.App.5th at p. 674.)

We therefore conclude that section 1172.75 applies to Divincenzo’s stayed prior

prison term enhancement and that, as a result, he is entitled to resentencing under

subdivision (d) of the statute. (See People v. Monroe (2022) 85 Cal.App.5th 393, 402

[“[S]ection 1172.75 requires a full resentencing, not merely that the trial court strike the

newly ‘invalid’ enhancements”].)

8

DISPOSITION

The trial court’s November 30, 2023 order finding Divincenzo ineligible for

resentencing under section 1172.75 is reversed. The matter is remanded to the trial court

with directions to recall Divincenzo’s sentence and resentence him under section

1172.75, subdivision (d).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

CODRINGTON

Acting P. J.

FIELDS

J.

9